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Appeals Nos. 312 and 313 of 1966. 787 Appeals by special leave from the judgment and decree dated February 5, 1963 of the Gujarat High Court in Appeal No. 1009 of 1960 from original decree. S.T. Desai, G. L. Sanghi, B.R. Agarwala and M. 1. Patel, for the appellant (in C.A. No. 312 of 1966) and the respondent (in C.A. No. 313 of 1966). K.L. Hathi, for respondents Nos. 1 to 8 (in C.A. No. 312 of 1966) and the appellants (in C.A. No. 313 of 1966). N.S. Bindra and S.P. Nayar, for respondent No,. 9 (in C.A. No. 312 of 1966). The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought, by special leave, from the judgment of the High Court of Gujarat dated February 5, 1963 in appeal No. 1009 of 1960 arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi, appellant in Civil Appeal No. 312 of 1966 (hereinafter referred to as the plaintiff) against the respondents in Civil Appeal No. 312 of 1966 and the appellants (excepting the Charity Commissioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to as the defendants). The lands in dispute are located in the village Isanpur and form part of a 'Devasthan ' inam. The 'Sanads ' were created in the name of the ancestors of the plaintiff as the Sarjudanashi of the estate of Shah Alam which was an estate consisting of 'Roza ', a mosque, a grave yard and several other properties. The estate was last held by the father of the plaintiff who expired on or about March 9, 1948 leaving behind him the plaintiff who was then a minor as his only heir. On August 26, 1948 the Collector of Ahmedabad was appointed as the guardian of the properties of the plaintiff by an order of the District Court, Ahmedabad. Subsequently, on or about January 15, 1953, the then Bombay Government assumed management of the estate under the Court of Wards Act, 1905 (Bombay Act No: 1 of 1905) and appointed the Collector of Ahmedabad as the manager of the same. The case of the plaintiff is that the defendants fraudulently entered into a conspiracy with the Collector 's subordinate staff for getting possession of the disputed lands. In this connection the first defendant wrote to the District Collector, Ahmedabad on July 25, 1956 representing that certain persons formed or will form a Co operative Society for carrying on agriculture and therefore required the lands for that purpose. Defendants 1, 2, 3 and 5 also made applications for that purpose alleging that they were Rabari, kept cattle and were residents of Ahmedabad but none of them had any agricultural land. On account of the fraud of the defendants the Collector was prevailed upon to make an order 788 dated July 28, 1956 in breach of the provisions of sections 63 and 64 of the Bombay Tenancy and Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the 'Act ', and the Rules made thereunder granting possession of the lands to the defendants who were neither carrying on agriculture on cooperative basis nor ever formed a Co operative Society. It was contended on behalf of the plaintiff that the lease granted to the defendants was void and the plaintiff was entitled to a decree for recovery of possession of the lands from the defendants and also for a sum of ' Rs. 10,000 for damages for use and occupation of the land prior to the date of the suit and ,for future mesne profits at the rate of Rs. 500 per month. The main written statement was filed by the first defendant and his contention was that the Civil Court had no jurisdiction to hear the suit. It was said that valid lease had been created in favour of the defendants and as a result of the coming into force of the Amending Act (Bombay Act No. 13 of 1956) the defendants had become statutory owners of the lands in question. The suit came up for hearing before the 5th Joint Civil Judge, Senior Division at Ahmedabad who by his judgment dated July 30, 1960, held that the Civil Court had jurisdiction to hear the suit and the provisions of the Act did not apply to the suit lands and therefore the defendants were trespassers. The learned Judge accordingly granted a decree in favour of the plaintiff for recovery of possession of the lands from defendants 1 to 8. He also granted the plaintiff a decree for a sum of Rs. 10,000 as damages for use and occupation of the lands with interest at 6 per cent p.a. from August 1, 1956 till the date of the suit i.e., July 11, 1958. The learned Judge further ordered that the plaintiff was entitled to recover mesne profits to be determined under O.20, r. 12, Civil Procedure Code. Defendants 1 to 8 took the matter in appeal to the High Court of Gujarat, being First Appeal No. 1009 of 1960. The High Court held: (1 ) that the defendants had failed to establish that they had become statutory owners of the suit lands on or before the date of the suit, (2) that the plaintiff had failed to establish that the lease created either on July 28, 1956 or on August 24, 1956 was vitiated by fraud, and (3) that the Civil Court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants from the date of the suit and this question could only be decided by the Revenue Authorities. For these reasons the High Court directed that under section 85A of the ' Act the following issue should be referred to the Mamlatdar having jurisdiction in the matter for his decision and that the officer shall communicate his decision, or, if there are appeals from the decision, the final decision, to the High Court as soon as possible. The issue was as follows: "Do the defendants prove that they are tenants of the lands in suit?" The High Court further directed that the hearing of the appeal 789 should stand adjourned until after the relevant communication was received from the Revenue Authorities. It is necessary at this stage to set out the relevant provisions of the Act as it stood at the material time. Section 2(18) states: "2. In this Act, unless there is anything repugnant in the subject or context, (18) 'tenant ' means a person who holds land on lease and include (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent tenant; and the word 'landlord ' shall be construed accordingly;" Section 32(1) is to the following effect: "32.(1). On the first day of April 1957 (hereinafter referred to as 'the tillers ' day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land, or (iii) the landlord has not terminated the tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands. Provided that if an application made by the landlord under section 29 for obtain Sup. C.1. 69 4 790 ing possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Gujarat Revenue Tribunal under the provisions of the Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as 'the postponed date '. Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso. " Section 32 F reads as follows: (1) Notwithstanding anything contained in the preceding sections, (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31. Provided that where a person of such category is a member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day. of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property and not in a larger proportion. (b) Where the tenant is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause 791 (a) the right to purchase land under section 32 may be exercised ( i ) by the minor within one year from the date on which he attains majority; (ii) by the successor in title of the widow within one year from the date on which her interest in the land ceases to exist; Provided that where a person of such category is a.member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not, in a larger proportion. Section 63 (1) reads thus "63. (1 ) Save as provided in this Act, (a) no sale ,(including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist (or who being an agriculturist will, after such sale, gift, exchange, lease or mortgage, hold land exceeding two thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings Act, 1961, or who is not an agricultural labourer ): Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed. Explanation. For the purpose of this sub section the expression 'agriculturist ' includes any person who as 792 a result of the acquisition of his land for any public purpose has been rendered landless, for a period not exceeding tea years from the date possession of his land is taken for such acquisition. Section 70 is to the following effect: "70. For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) to decide such other matters as may be referred to him by or under this Act. " Section 85 states: "(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. (2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Explanation. For the purposes of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act., 1906." Section 85A provides as follows: "( 1 ) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority ') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shah communicate ifs decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable there Explanation. For the purpose of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act, 1906. " Section 88 reads "(1) Save as otherwise provided in sub section (2), nothing in the foregoing provisions of this Act shall apply (a) to lands belonging to, or held on 'lease from, the Government; (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specific as being reserved for nonagricultural or industrial development; (c) to an estate or land taken . . . under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the ; (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply there to; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land (a) the landlord shall be entitled to. terminate the tenancy under section 31 or under section 33B in the case of a certificated land ' lord within one year from such date; and (b) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under section 32 (or under section 33C in the case of an excluded tenant); and 794 Rule 36 of the Bombay Tenancy and Agricultural Lands Rules, 1956 is to the following effect: "Conditions on which permission for sale etc. of land. under section 63 may be granted ( 1 ) The Collector or other officer authorized under the proviso to sub section (1 ) of section 63 shall not grant permission for the sale, gift, exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural laboratory or who, being an agriculturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied : (a) such a person bona fide requires the land for a non agricultural purpose; or (b) the land is required for the benefit of an industrial or commercial undertaking or an educational or charitable institution; or (c) such land being mortgaged, the mortgagee has obtained from the Collector a certificate that he intends to take the profession of an agriculturist and agrees to cultivate ,he land personally; or (d) the land is required by a Co operative Society; or The first question to be considered in this case is whether the High Court was right in taking the view that the plaintiff failed to establish that the lease created on August 24, 1956 was vitiated by fraud. It was contended by Mr. S.T. Desai on behalf of the plaintiff that the trial court had reached the finding that there was a conspiracy between the defendants and the Collectables staff and the Collector was induced by fraud and misrepresentation to grant lease in favour of the defendants. It was argued that there was no justification for the High Court to interfere with the finding of the trial Judge on this point. Mr. S.T. Desai took us through the relevant documentary evidence on this issue but having perused that evidence, we are satisfied that the High Court was right in holding that the plaintiff had not established that there was any fraud or misrepresentation made to the Collector or that there was a conspiracy between the defendants and the City Deputy Collector or his subordinates. In this connection, the High Court has referred to the circumstance that the offer made by the Collector in his letter, exhibit 51 embodies 795 the conditions which are capable of being explained on the ground that the Collector was aware of the fact that there was no Co operative Society in existence and that the defendants were not members of any! Co operative Society. The High Court also referred to the application, exhibit 5 3 which contains an endorsement of the City Deputy Collector that the defendants were given the lands for cultivation on co operative basis. The High Court also referred to the circumstance that neither the plaintiff nor his personal guardian had appeared in the witness box to support the allegation of fraud. We are accordingly of the opinion that the High Court was right in expressing the view that the lease in favour of the defendants was not vitiated by fraud and Counsel on behalf of the plaintiff has been unable to make good his submission on this aspect of the case We pass on to consider the next question arising in this case, namely, whether the defendants had become statutory owners of the suit lands because of the provisions of section 32, section 32 F or section 88(1) of the Act. It is necessary to state at the outset that the Amending Act No. 13 of 1956 came into force on August 1, 1956. It is not disputed by the parties that the Act as it stood before the Amending Act 13 of 1956, applied to the suit land. One of the sections which was amended by the Amending Act 13 of 1956 was section 88. One of the effects of the amendment of section 88 was that sections 1 to 87A were not applicable to "an estate or land taken under the management of the Court of Wards". So, it is not in dispute that after August 1, 1956 the provisions contained in sections 1 to 87A of the Act did not apply to the suit lands. It is also admitted that after the cessation of the management by the Court of Wards the provisions of the Act again became applicable to the suit lands. It has been found by the High Court upon examination of the evidence that the Court of Wards withdrew its superintendence on May 11, 1958 when the order for the release of the management was actually passed and not on May 11, 1957 when the plaintiff attained majority. It is evident therefore that the Act applied to the suit lands before August 1, 1956, that sections 1 to 87A did not apply during the period between August 1, 1956 and May 11, 1958 which was the date on which the management of the estate by the Court of Wards ceased, and that the provisions of the Act again applied to the suit lands after the cessation of such management. On behalf of the defendants the argument was presented that there was a valid lease granted on July 28, 1956 and the defendants were tenants on April 1, 1957 i.e., the date of 'the tillers day ' under section 32 of the Act and accordingly the defendants became statutory owners of the lands in suit under that section. Mr. Hathi on behalf of the defendants challenged the finding of the High Court that there was no valid lease created on July 28, 1956, but having gone through the relevant documentary 796 and oral evidence, we are satisfied that the defendants have not substantiated their case that there was any valid lease of the lands on July 28, 1956 and the High Court was right in taking the view that the lease was created only on the execution of the ' 'Kabuliyat ' dated August 24, 1956. It follows from this finding that the defendants were not tenants on the 'tillers ' day ' mentioned in section 32 of the Act. The other question which arises in! this connection is whether the defendants became statutory owners because of the provisions contained in the first proviso to section 88 of the amended Act. The High Court has found that the defendants were not subsisting tenants on May 11, 1958 which was the date on which there was a cessation of the management. The reason was that the 'Kabuliyat ' dated August 24, 1956 was a period of. one year and having regard to the fact that the Act was not applicable to the plaintiff 's estate from August 1, 1956 to May 11, 1958, the tenancy would expire on May 31, 1957 as provided for in the 'Kabuliyat ' itself. The High Court therefore found that on the basis that the tenancy was created by the 'Kabuliyat ' dated August 24, 1956, the tenancy came to an end on May 31, 1957, so that there was no subsisting tenancy on the date of the cessation of the management. If there wag. no subsisting lease on May 11, 1958, the High Court was right in taking the view that the defendants had failed to establish that they had become statutory owners of the land by virtue of the first proviso to section 88 of the new Act. We proceed to consider the next question arising in this case, namely, whether the Civil Court had jurisdiction to decide the question whether the defendants were tenants of the suit lands on July 28, 1956 or on May 11, 1958 and whether the lease was created in favour of the defendants on July 28, 1956 as claimed by them or on August 24, 1956 as claimed by the plaintiff. Mr. Hathi addressed the argument that the question whether the defendants were tenants with effect from July 28, 1956 or thereafter was an issue which was expressly triable by a Revenue Court under section 70 of the Act and the jurisdiction of the Civil Court was barred. It was argued that the issue of ownership was not the primary issue before the High Court and the main question was whether the defendants were or were not the tenants of the suit lands on the material date, namely, July 28, 1956 or on May 11, 1958 and such a question lay within the scope of the jurisdiction of the Revenue Authorities. In other words, it was argued that the determination of the question whether the lease was created which subsisted after August 1, 1956 or which subsisted also on May 11, 1958 was not a matter within the scope of the jurisdiction of the High Court. We are unable to accept the argument put forward by Mr. Hathi as correct. Section 70 (b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the sub section 797 does not cast a duty upon him to decide whether a person was or was not a tenant in the past whether recent or remote. The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the 'tillers ' day ' or on the date of the release of the management by the Court of Wards. In either case, the question for decision will be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past. The question whether the defendants were tenants on July 28, 1956 or on May 11, 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership. In other words, the plea of tenancy on the two past dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the Civil Court cannot therefore be held to be barred in this case by virtue of the provisions of section 70 of the Act read with the provisions of section 85 of the Act. We are accordingly of the opinion that section 85 read with section 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act. In this context, it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. As the Judicial Committee observed in Secretary of State vs Mask & Co.(1) "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. " In our opinion, there is nothing in the language or context of section 70 or section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates. We are also of the opinion that the jurisdiction of the Civil Court is not barred in considering the question whether the provisions of the Act are applicable or not applicable to the disputed land during a particular period. We accordingly reject the argument of Mr. Hathi on this aspect of the case. (1) 67 I.A. 222, 236. 798 The next contention on behalf of the plaintiff is that the High Court was in error in referring to the Mamlatdar under section 85A of the Act, the issue whether "the defendants were tenants of the land in suit". It was pointed out by Mr. S.T. Desai that the High Court had rejected the contention of the defendants that the tenancy was created on July 28, 1956 but the defendants were tenants only with effect from August 24, 1956. The High Court has further found that there was no subsisting tenancy on May 11, 1958 when there was a cessation of the management of the Court of Wards. The suit was brought by the plaintiff on July 11, 1958 and the argument put forward on behalf of the plaintiff is that there was no plea on behalf of the defendants that there was any intervening act, event or transaction between May 11, 1958 and July 11, 1958 under which a fresh tenancy was created. In other words, the argument on behalf of the plaintiff was that the only plea set up on behalf of the defendants was the plea of tenancy on July 28, 1956 which was the basis of the plea of statutory ownership. It was said that there was no other plea of tenancy set up by the defendants subsequent to May 11, 1958 when the management of the Court of Wards ceased. In our opinion, the argument is well founded and must be accepted as correct. On behalf of the defendants Mr. Hathi referred to paragraphs 4 and 6 of the written statement of the first defendant dated September 18, 1958, but, in our opinion, both these paragraphs must be read together and the plea of tenancy in para 4 is based upon the: claim of the defendants that they were "lawful ' tenants of the suit lands and they got this right before August 1, 1956". The plea of tenancy is therefore based upon the alleged lease of July 28, 1956 which is rolled up in the plea of substantive claim of statutory ownership. On a proper interpretation of the language of paragraphs 4. and 6 of the written statement we are satisfied that there is no independent plea of tenancy set up by the defendants as subsisting on ' the date of the suit and there was no issue which survived for being referred for the decision of the Mamlatdar under section 85A of the Act. We are accordingly of the opinion that the High Court was in error in referring any fresh issue to the Mamlatdar but instead should have granted a decree to the plaintiff for recovery of possession the lands and also as to damages and mesne profits as decreed by the trial court. For the reasons expressed we hold that Civil Appeal No. 312 of 1966 must be allowed and the judgment of the High Court dated February 5, 1963 should be set aside and the decree of the 5th Joint Civil Judge, Senior Division at Ahmedabad dated July 30. 1960 should be restored. Civil Appeal No. 313 of 1966 is dismissed. The plaintiff will be entitled to the costs of 799 this Court (one set of hearing fees) but we do not propose to make any order with regard to the costs incurred by the parties in the High Court. The application filed by the defendants for leave to produce additional evidence in this Court is rejected. C.A. 312 of 1966 allowed. V.P.S. C.A. 313 of 1966 dismissed.

The appellant succeeded to the estate consisting of the suit lands when he was a minor. The State Government assumed management of the estate under the Bombay Court of Wards Act, 1905 and appointed the Collector as the manager of the estate. While the estate was under the management of the Court of Wards on July 25, 1956. the first respondent wrote to the Collector that the respondents were forming a cooperative society. for carrying on agriculture, and that the suit lands were required for that purpose. The Collector passed an order on July 28, 1956. The kabuliyat was executed on August 24, 1956 by the respondents, though no cooperative society was formed. The lease was therefore created on August 24, 1956 and according to the kabuliyat, expired on 31st May, 1957. The Court of Wards withdrew its superintendence on May 11, 1958. Under section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 every tenant shall be deemed to have become a statutory owner of the land on 1st April, 1957 known as the "tillers ' day". ' The Act was amended by Amending Act 13 of 1956 which came into force on August 1, 1956. The effect of the amendment was that sections 1 to 87A were not applicable to an estate or land taken under the management of the Court of Wards. Under section 88 of the Act, after cessation of the management by the Court of Wards, the provisions of the Act would apply to such estate. Therefore, sections 1 to 87A of the Act were not applicable to the suit lands from August 1, 19 '56 to May 11, 1958. The appellant filed a suit on July 11, 1958 for recovery of possession of the suit lands and mesne profits on the ground that the lease was fraudulently obtained by the respondents. The respondents contended that they became statutory owners under section 32 or section 88 of the Act and that the civil court had no jurisdiction to hear the suit. The trial court decreed the suit. On appeal, the High Court held: (1) that the appellant had failed to establish that the lease was vitiated by fraud; (2) that the respondents had failed to establish that they had become statutory owners of the suit lands on or before the date of suit; (3) that the civil court had jurisdiction to decide whether the resportdents were tenants on the relevant dates namely July 28, 19 '56 or May 11, 1958, before the suit was filed, and whether they had become statutory owners, (4) but that the civil court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants on the date of the suit that such question could only be decided by the Revenue authorities and that the question should be referred to the Mamlatdar accordingly. 786 In appeal to this Court, HELD: (1) On the evidence adduced, the High Court was right in its view that the lease in favour of the respondeats was not vitiated by fraud. The evidence showed 'that the lease was granted with the knowledge that there was no cooperative society. [795 A C] (2) (a) As during the period August 1, 1956 to May 11, 1958 sections 1 to 87A of the Act were not applicable to the suit lands, section 32 was not applicable, and therefore, the respondents could not have become statutory owners on the "tillers ' day", mentioned in section 32. [795 G; 796 A] (b) As provided by the Kabuliyat itself the tenancy expired on May 31, 1957. That is, there was no subsisting lease on May 11, 1958 which was the date of cessation of the management by the Court of Wards. If there was no subsisting lease on May 11, 1958 the respondents were not tenants, and the High Court was right in its view that the respondents had failed to establish that they had become statutory owners of the land under section 32 by virtue of the first proviso to section 88. [796 s E] (3) Section 70(b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant and not to decide whether a person was or was not a tenant in the past. In the present case, the contention of statutory ownership of the respondeats was based on the question whether the respondents were tenants on July 28, 1956 or on May 11, 1958 and not whether they were tenants on July 11, 1958 the date of the suit. The question would be therefore whether they were or were not tenants in the past. Further, the question. was put forward by the respondents not as an independent question but as a reason for substantiating their plea of statutory ownership. Therefore, the plea of tenancy on the past two dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the civil court cannot be held to be barred by virtue of the provisions of sections 70 and 85, as there is no exclusion, expressly or by necessary implication, of the jurisdiction of the civil court to decide the question whether the respondents had acquired title as statutory owners. Nor is the jurisdiction of the civil court barred for considering the question whether the provisions of the Act are or are not applicable to the suit land during a particular period. [796 H; 797 A E; G H] Secretary of State vs Mask & Co., 67 I.A. 222, 236, referred to. (4) In the written statement, the only plea set up on behalf of the respondents Was the plea of tenancy on July 28, 1956 which was the basis of statutory ownership. The High Court found that the tenancy was created on August 24, 1956 and that the tenancy did not subsist on May 11. 1958 when there was a cessation of the management by the Court of Wards. There was no plea of any intervening act or transaction between May 11, 1958 and July 11, 1958, the date of suit, under which a fresh tenancy was created and which was subsisting on the date of the suit. There was thus no issue which survived for the decision of the Mamlatdar under section 85A of the Act. Therefore, the High Court should have decreed the suit and was in error in referring the issue whether the respondents were tenants of the land on the date of suit to the Mamlatdar. [798 A G]

minal Appeal No. 187 of 1965. Appeal by special leave from the judgment and order dated August 3, 1965 of the Allahabad High Court in Criminal Misc. Contempt Case No. 7 of 1965. U. P. Singh and D. N. Mishra, for the appellant. Sobhagmal Jain, section P. Singh and J. P. Goyal, for the respondent. The Judgment of the Court was delivered by Bachawat, J. The appellant is the manager of Hiralal Memo rial Intermediate College, Bhaurauli, in the District of Azamgarh. The respondent was the principal of the College. On December 14, 1963 the respondent drew from the Boys ' Fund of the college two sums of Rs. 189 for payment of scholarship to the two Harijan students for, the period from May to November 1963. On withdrawal of the monies he sent to the Harijan. Tatha Samaj Kalyan Adhikari a form called Form No. 14 to the Adhikari containing a receipt of the scholarship signed by the two students and counter signed by himself. The Adhikari wrote to the appellant informing him of the complaint. made by the students that in spite of the submission of Form No. 14 they had not received the scholarship. On March 24, 1964 the District Inspector of Schools visited the College and on finding that the scholarships had not been paid called for an explanation for nonpayment. On April 10, 1964 the appellant forwarded the Inspector 's letter of March 24 to the respondent and asked him to give an, explanation. The respondent sent a reply stating that payments were made to the students on March 31, 1964 and that the delay in payment was due to the absence of the students from the College and the fact that the register on which receipts had to be obtained were with the Inspector from December. 8, 1963 to March 10, 1964. A meeting of the managing committee was called on April 14, 1964 to consider the Inspector 's letter and the respondent 's explanation. According to the appellant, on April 19, 1964 the managing committee met and resolved to take disciplinary action against the respondent. On April 21, 1964 the appellant passed an order suspending the respondent pending the inquiry. The order stated that it was passed in exercise of the power vested in the appellant by the rules and the resolution of the managing committee dated April 19, 1964. A copy of the resolution was attached. On April 24, 1964 the respondent filed a writ petition in the High Court of Allahabad praying for appropriate writs quashing the order of suspension. He alleged that the appellant had no authority to pass the order and that the order was made in bad faith. On the same date the respondent obtained an ex parte order from the High Court 136 staying the, operation of the suspension order. On July 22, 1964 after hearing both the parties the High Court vacated the stay order. On December 25, 1964 the appellant served a charge,sheet on the respondent. Charge No. (IV) was as follows "The scholars hip amounts of Rs. 216/25 and Rs. 216/25 of Sri Karam Deo Ram and Sri Jai Raj Ram students of Class XII for the months of May 1963 to November 1963 were withdrawn by you on 14 12 1963 but the same have neither been disbursed to the students concerned nor refunded to the, Treasury. Thus you are guilty for misappropriation of the aforesaid amount. Evidence which is proposed to be considered in support of the charge : 1. Letter of D.J.O., dated 24 3 1964. Letter of H.W.O., dated 31 3 1964. Statement of students. Thus it is evidently clear that you being entrusted with the aforesaid money have dishonestly misappropriated the amount for your own use and the poor students have been put to loss by your misconduct. As such you have committed criminal breach of trust dis honestly punishable under sec. 406 I.P.C." The respondent was required to submit his explanation by January 24, 1965. Instead of submitting his explanation the respondent filed a petition in the High Court asking for committal of the appellant for contempt of court. His contention was that the aforesaid charge was the subject matter of inquiry in the pending writ petition, and that as the respondent had launched a parallel inquiry in the matter he had committed contempt of court. The 'High Court accepted the contention and held that the respondent 'was guilty of contempt of court and directed him to pay a fine .,of Rs. 500 and costs. The respondent has filed this appeal after , obtaining special leave from this Court. The conditions of service of the teachers in the College are governed by sec. 16 G of the Intermediate Education Act, 1921. (U.P. Act 11 of 1921) and the Regulations framed thereunder. 'Regulations 31 to 45 provide for punishment, inquiry and suspension. The Committee of Management is the, punishing ,authority. The punishments of dismissal, removal, discharge and reduction in rank and dimunition in emoluments require prior approval of the Inspector. If it is decided to take disciplinary action against an employee, the inquiry is made by an authority :appointed by the committee. The ground on which it is proposed 137 to take action is reduced in the form of definite charges. The charges are communicated to the employee, who is required to submit a written statement of his defence. If the employee or the inquiring authority so desires, an oral inquiry takes place. The inquiring authority then makes a report. On receipt of the report the punishing authority takes its decision on the case. On receipt of the decision of the committee the Inspector gives his decision. The Committee then implements the decision of the Inspector. The Regulations indicate definite time limits for the communica tion of the charge, submission of the written statement of defence,completion of the inquiry, the making of the report by the inquiring authority, the taking of decisions by the punishing authority and the Inspector and the implementation of the decision. Pending the inquiry and final orders, the employee may be suspended by the committee. The power of suspension may be exercised by the manager if it is delegated to him under the rules of the institution. The employee under suspension is paid a subsistence allowance of an amount equal to half his pay. The issue in the disciplinary proceedings is whether the em ployee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers. An authority holding an inquiry in good faith in exercise of the powers vested in it by statutory regulations is not guilty of contempt of court, merely because a parallel inquiry is imminent or pending before a court. In Tukaram Gaokar vs section AT.Shukla(1) this Court held that the initiation and continuance of proceedings for imposition of penalty on the appellant for his alleged complicity in the smuggling of gold under sec. 112(b) of the Sea did not amount to a contempt of court though his trial in a criminal court for offences under sec. 135(b) of that Act and other similar offences was imminent and identical issues would arise in the proceedings before the customs authorities and in the trial before the criminal court. This Court observed (1) ; 138 "To constitute contempt of court, there must be involved some 'act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority ' or 'something calculated to obstruct or interfere with the due course of justice or the lawful process of the court. ' Reg. vs Gray(1) Arthur Reginald Perors vs The King(2). The customs officers did nothing of this kind. They are acting bona fide discharging their statutory duties under sections 111 and 112. The power of adjudicating penalty and confiscation under those sections is vested in them alone. The criminal court cannot make this adjudication. The issue of the show cause notice and proceedings there under are authorised by the Act and are not calculated to obstruct the course of justice in any Court. We see no justification for holding that the proceedings amount to contempt of court. " In Re: Shr Mehra(3) the High Court of Madhya Pradesh held that the bona fide holding of a departmental inquiry on a charge of misappropriation against a government servant did not amount to contempt of court merely because a criminal prosecution on the same charge was pending against him. A fortiori the inquiry cannot amount to contempt court if it is not a parallel investigation on a matter pending before a court, see Saibal Kumar Gupta V. B. K. Sen(4). In Delhi Cloth and General Mills Ltd. vs Kaushal Bhan(5) and Tata Oil Mills Co., Ltd., vs The Workmen(6) the Court held that a domestic inquiry by the employer into the charges against a workman was not vitiated because it was held during the pendency of a criminal trial into the same or similar charges. It may be desirable to stay the domestic inquiry pending the final disposal of the criminal case but the inquiry could not be characterised as mala fide merely because it was held during the pendencY of the criminal proceedings. In The King vs Parmanand(7) a Full Bench of the Patna High Court held that the giving or withholding of consent to the withdrawal of the prosecution under sec. 494 of the Code of Criminal Procedure was a judicial act and it was improper for the court to permit withdrawal of the prosecution on orders of the Government without making any attempt to exercise its discretion, that the power to grant adjournments of pending proceedings under section 344 of the Code and the power to call for records in A pending or completed case under secs. 423, 435 of the (1) [1900] 2Q.B.36. (2) (1951] A.C.482.488. (3) A.I.R, 1962 M.P.72. (4) ; (5) [1960] 3S.C.R.227. (6) ; (7) A.I.R. 1949 Pat 282. 139 Code and the general rules and circular orders were vested in the court and not in executive officers. Those questions do not arise for decision in this case. Narayan, J. in a separate judgment observed that in an inquiry with regard to a matter which is sub judice was bound to interfere with the even and ordinary course of justice and a parallel inquiry of this kind would amount to opening the door for contempt. In that case the executive officers were issuing orders to the criminal court calling for its records and asking it to adjourn the proceedings and to consent to the withdrawal of the prosecution and on those facts it might be possible to hold that the officers were guilty of contempt. But we cannot agree with the broad observation that a parallel inquiry on a matter pending before a court necessarily amounts to a contempt of court. We think that an inquiry by a domestic tribunal in good faith into the charges against an employee does not amount to contempt of court merely because an inquiry into the same charges is pending before a civil or criminal court. In D. J. Shield vs Ramesam (1) the Andhra Pradesh High Court agreed with the observations of Narayan, J. but the decision is distinguishable because the court found that the inquiry by the Collector into the charges against a sub magistrate was not a parallel inquiry and did not amount to contempt of court. After the High Court vacated the stay order the appellant bona fide believed that the disciplinary proceedings could be continued. The service of the charge sheet on the respondent was made in good faith and was not intended or calculated to interfere with the court proceedings. We are inclined to think that the respondent instituted the contempt proceeding with ulterior motives. He was under suspension and was drawing half pay for doing nothing. His intention was to delay the inquiry into the charges against him. Having failed to obtain the stay order he launched the contempt proceeding so that the inquiry might be indefinitely held up. In view of the order under appeal he has successfully delayed the inquiry so far. In the result, we allow the appeal, set aside the judgment and order of the High Court dated August 3, 1965 and dismiss the petition filed under the Contempt of Courts Act. Y.P. Appeal allowed (1) A. 1.

Pending an inquiry into the conduct of the respondent Principal of a college in respect of certain allegations, the respondent was suspended. The respondent filed a writ petition in the High Court to quash the order of suspension and also obtained ex parte stay against the continuation of the inquiry. The ex parte stay was vacated. Thereafter the appellant manager of the college, served a charge sheet on the respondent and called upon him to explain the allegations. The respondent moved the High Court for holding the appellant guilty of contempt of Court. The High Court held the appellant guilty of contempt of Court. In appeal, this Court. HELD:The appeal must be allowed. An authority holding an inquiry in good faith in exercise of the powers vested in it by statutory eegulations is not guilty of contempt of Court, merely because a parallel inquiry is imminent or pending before a Court. The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a Court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the dirciplinary authority is free to exercise its lawful powers. [137D G] In this case, after the stay order was vacated by the High Court, the appellant bona fide believed that the disciplinary proceedings could be continued, and the charge sheet was served in good faith and was not intended or calculated to, interfere with the court proceedings. Rather the respondent instituted the contempt proceedings with ulterior motives to indefinitely hold up the inquiry after having failed to obtain the stay order. [139 E F] Tukaram Gaokar vs section N. Shukla, ; , Reg, vs Gray, , Arthur Reginald Perors vs The King , 488, Re : Shri Mehra A.I.R. 1962 M.P. 72; Saibal Kumar Gupta vs B. K. Sen ; ; Delhi Cloth and General Mills Ltd., vs Kaushal Bhan, ; ; Tata Oil Mills Co., Ltd. vs The Workmen, A.I.R. 1965 S.C. 155; The King vs Parmanand, A.I.R. 1949 Pat. 282; D. J. Shield vs Ramesam, A.T.R. 1955 Andhra Pradesh, 156 referred to. 135

N: Criminal Appeal No. 115 of 1975. Appeal by Special Leave from the Judgment and order dated 10 1 1972 of the Madras High Court in Crl. Appeal No. 64 No. 657/70. A. V. Rangam for the Appellant. A. T. M. Sampath for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. On November 1, 1969, a sample of gingelly oil was purchased by the Food Inspector, Madurai Municipality from the shop of the first respondent, who is now reported to be dead and against whom, this appeal, has, therefore, abated. At that time respondent No. 2 was attending to the business. After completing the necessary formalities the Food Inspector arranged to send one part of the sample to the Public Analyst at Madras for analysis. The sample was analysed by the Public Analyst on November 11, 1969 and it was reported by him that it contained 5.1% of Free Fatty Acid as against the limit of 3.0% permissible under clause A.17.11 of Appendix B to the Prevention of Food Adulteration Rules, 1955. In his report he also mentioned that the sample was properly sealed, it was air and moisture tight and packed in thick paper so as to be proof against light, and, the Free Fatty Acid content of the oil would, therefore, remain unchanged for several months. On receipt of the Public Analyst 's report a complaint was filed against the two respondents for an offence under sec. 16(1) (a) and Sec. 7(i) read with sec. 2(i) (L) and Clause A.17.11 of Appendix 'B ' to the Prevention of Food Adulteration Rules. Both the respondents denied the offence. The 776 second respondent stated that he signed on the various documents produced by the prosecution as he was asked to do so by the Inspector. He did not read the contents of those documents. The brother of the second respondent was examined as a defence witness and he stated that he was in the shop when the Food Inspector came there and purchased the sample and that at the time of the sale the Food Inspector was told that the gingelly oil was not meant to be used as an article of food but was meant for "oil bath". At the trial a request was made by the respondents that another part of the sample which had been produced by the Food Inspector in the Court might be sent to the Director, Central Food Laboratory, Calcutta, for analysis. It was sent as desired. The sample was analysed by the Director, Central Food Laboratory, Calcutta on February 6. 1970. According to his report the gingelly oil contained 6.2% of Free Fatty Acid and was, therefore, adulterated. The learned District Magistrate, Madurai acquitted both the respondents observing that the Free Fatty Acid had increased from 5.1% to 6.2% between November 11, 1969 and February 6, 1970 and it was, therefore, likely that the Free Fatty Acid content in the oil might have similarly increased between November 1, 1969 when the sample was taken and November 11, 1969, when the sample was analysed by the Public Analyst, Madras. On that ground, the District Magistrate held that it was not possible to say that the prosecution had established that on the date when the sample was taken the Free Fatty Acid content of the oil exceeded 3%. The State preferred an appeal to the Madras High Court against the order of acquittal. The High Court confirmed the order of acquittal for the same reason as that given by the District Magistrate. The State has filed this appeal after obtaining special leave of this Court under Art 136 of the Constitution. Under Sec. 2(i)(L) (before it was amended in 1976) of the , an article of food is deemed to be adulterated "if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability". Paragraph A.17.11 of Appendix 'B ' to the Rules made under the prescribes the standard in the case of Til oil (Gingelly or seasame oil) and to the extent relevant it reads as follows: ["A.17.11. Til oil (Gingelly or sesame oil) means the oil expressed from clean and sound seeds of Til (Sesamum indicum), black, brown, white, or mixed. It shall be clear, free 777 from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil. It shall conform to the following standards: (a) Butyro rafractometer reading at 40oC . 58.0 to 61 (b) Saponification value . 188 to 193 (c) Iodine value . 105 to 115 (d) Unsaponifiable matter . Not more than 1.5 per cent. (e) Free fatty acid as Oleic acid. Not more than 3.0 per cent. (f) Bellier test(Turbidity temperature Not more than Acetic acid method). 22oC).] .]" Now, a sample of food purchased by a Food Inspector has to be divided by him into 3 parts and each part has to be marked, sealed and fastened separately. Before the Act was amended in 1976, one part was to be delivered to the person from whom the sample was taken, another part was to be sent for analysis to the Public Analyst and the third part was to be retained with the Food Inspector to be produced by him in case legal proceedings were taken or it became necessary to send it for analysis to the Director of the Central Food Laboratory. The Public Analyst was required to deliver a report of the result of his analysis and this report was ordinarily the foundation of the prosecution by the Food Inspector. After the institution of the prosecution, the accused was given the right to request the Court to send the third part of the sample retained by the Food Inspector to the Director, Central Food Laboratory for a certificate. The Director, Central Food Laboratory was required to send to the Court a certificate specifying the result of his analysis and the certificate of the Director, Central Food Laboratory, thereupon, superseded the Public Analyst 's report. The Public Analyst 's report, if not superseded by the Certificate of the Director. Central Food Laboratory and the Certificate of the Director, Central Food Laboratory might be used as evidence of the facts stated therein in any proceeding under the Act with this difference that the certificate of the Director, Central Food Laboratory was to be final and conclusive evidence of the facts stated therein. In the present case the certificate of the Director showed that the sample of gingelly oil contained 6.2% of Free Fatty Acid whereas the permissible limit was 3% only. We are not concerned with the Public Analyst 's report since that has been superseded by the certificate of the Director, Central Food Laboratory, and the latter certificate has been made conclusive evidence of the facts mentioned in it. The sample, it must therefore be found, was adulterated. 778 The sample, as we mentioned earlier, was taken on November 1, 1969, the analysis by the Public Analyst was on November 11, 1969 and the analysis by the Director, Central Food Laboratory was on February 6, 1970. The learned District Magistrate and the High Court thought that although the Free Fatty Acid content in that part of the sample which was sent to the Director, Central Food Laboratory was 6.2% on the date when the Director analysed the oil it could not be said to have been established that on the date when the sample was taken by the Food Inspector the Free Fatty Acid content exceeded 3%. According to them it could well be that the Free Fatty Acid content increased due to natural causes. We are unable to agree with the lower Courts. There is nothing in the evidence, nor has anything been shown to us from any scientific work which would suggest that the Free Fatty Acid content would so rapidly increase in the space of about three months that what was less than 3% on November 1, 1969, when the sample was taken increased to 6.2% by February 6, 1970, when the sample was analysed by the Central Food Laboratory. On the other hand in the New Encyclopaedia Britannica Volume 13 (pages 526 527) it is said: "Fats can be heated to between 200o and 250oC without undergoing significant changes provided contact with air or oxygen is avoided. On exposure to air, oils and fats gradually undergo certain changes. The drying oils absorb oxygen (dry) and polymerize readily; thin layers form a skin or protective film. The semidrying oils absorb oxygen more slowly and are less useful as paint oils. Still, sufficient oxygen is absorbed in time to produce distinct thickening and some film formation. Oxidation of the drying and semidrying oils is accelerated by spreading the oil over a large surface. On greasy cloths, for example, oxygen absorption may proceed so rapidly that spontaneous combustion ensues. The nondrying oils, of which olive oil is typical, do not oxidize readily on exposure to air, although changes do take place gradually, including slow hydroysis (splitting to fatty acids and glycerol) and subsequent oxidation. This slow oxidation causes a disagreeable smell and taste described by the term rancidity. 779 The chemical reactions involved in oil oxidation have been studied widely, when oils and fats are exposed to air, little change takes place for a period of time that varies from oil to oil depending upon the amount and type of unsaturation and the content of natural antioxidants. During this so called induction period, there is virtually no change in either odour or chemistry of the oil because of the protective effect of natural antioxidants, especially tocopherol. Gradually, the effectiveness of the anti oxidant is overcome and there is an accelerating rate of oxidation of unsaturated acids, called autoxidation. Chemically, the first identifiable oxidation products are hydroperoxides. These break down into a large variety of low molecular weight aldehydes, esters, alcohols, ketones, acids, and hydrocarbons, some of which possess the pungent, disagreeable odours characteristic of rancid fats. In soyabean oil exposed to air to the point of incipient rancidity, more than 100 different oxidation products have been identified. Natural oils such as coconut oil, with very low levels of unsaturation, are very stable to flavour deterioration, but the more highly unsaturated oils such as soyabean oil or safflower oil lose their flavour more quickly. Sesame oil is unique in its flavour stability because of the presence of several natural antioxidants (sesamin, sesamolin, sesamol). Synthetic antioxidants such as propyl gallate, butylated hydroxyanisole (BHA), and butylated hydroxytoluene (BHT) have been used to retard the onset of rancidity and increase the storage life of edible fats". Gingelly (Til or seasame) oil we may mention is a semi drying oil. From the extract from the Encyclopaedia Britannica it is only after prolonged exposure to air and light that there may be some discernible chemical changes in gingelly (til or seasame) oil. In fact it is mentioned in the Encyclopaedia Britannica that seasame oil is unique in its flavour stability because of the presence of several natural antioxidants. There is nothing to indicate that the samples were not packed as required by the rules. The report of the Public Analyst mentions "The sample has been received properly sealed, to be air and moisture tight and packed in thick paper to be proof against access to light. Under these conditions the Free Fatty Acid content of oils 780 remains unchanged for several months". The certificate of the Director, Central Food Laboratory mentions "The seals were intact". We are, therefore, clearly of opinion that there was no justification for the conclusion of the District Magistrate and the High Court that the Free Fatty Acid content of the oil on the date when the sample was taken might have been less than 3% and therefore, not adulterated. We set aside the judgments of the District Magistrate and the High Court and convict the second respondent under Sec. 16(1)(a)(i) read with sec. 7(i) and 2(i) (L) of the and sentence him to pay a fine of Rs. 100 in default to undergo simple imprisonment for a period of two weeks. We are imposing a nominal sentence having regard to the circumstance that we are interfering with a concurrent order of acquittal more than ten years after the commission of the offence.

Under section 2(i)(L) (before it was amended in 1976) of the , an article of food is deemed to be adulterated "if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability". On November 1, 1969, sample of gingelly oil was purchased by the Municipal Food Inspector from the shop of the respondents. After completing the necessary formalities, the Food Inspector arranged to send one part of the sample to the Public Analyst for analysis. The Public Analyst analysed the sample on November 11, 1969 and reported that it contained 5.1% of Free Fatty Acid as against the permissible limit of 3%. On receipt of the report, the respondents were prosecuted for offences under Section 16(1)(a)(i) read with Section 7(i) and 2(i)(L) of the . At the trial, in pursuance of the respondents request, another sample was got analysed on February 6, 1970 by the Director, Central Food Laboratory. According to his report, the gingelly oil contained 6.2% of the Free Fatty Acid and was therefore, adulterated. The District Magistrate observing that the Free Fatty Acid had increased from 5.1% to 6.2% between November 11, 1969 and February 6, 1970 and it was therefore, likely that the Free Fatty Acid content in the oil might have similarly increased between November 1, 1969 when the sample was taken and November 11, 1969 when the sample was analysed by the Public Analyst, held that it was not possible to say that the prosecution had established that on the date when the sample was taken the Free Fatty Acid content of the oil exceed 3% and acquitted the respondents. The order of acquittal was confirmed by the High Court. In the appeal to this Court, it was, ^ HELD:1 (i) The judgments of the District Magistrate and the High Court are set aside. The second respondent is convicted under Section 16(1)(a)(i) and sentenced to pay a fine. [780C] (ii) There was no justification for the conclusion of the District Magistrate and the High Court that the Free Fatty Acid content of the oil on the date when the sample was taken might have been less than 3% and therefore not adulterated. [780B] 775 In the instant case, the Public Analyst report had been superseded by the certificate of the Director, Central Food Laboratory, and the latter certificate had become conclusive evidence of the facts mentioned in it. The sample, must therefore be held, to be adulterated. There was nothing in the evidence, nor had anything been shown from any scientific work which would suggest that the Free Fatty Acid content would so rapidly increase in the space of about three months. If it was less than 3% on November 1, 1969 when the sample was taken it could not have increased to 6.2% by February 6, 1970 when the sample was analysed by the Central Food Laboratory. [777H, 778D] 2. Gingelly (Til or Sesame) oil is a semi drying oil. It is only after Prolonged exposure to air and light that there may be some discernible chemical changes in gingelly (Til or sesame) oil. [779G] New Encyclopaedia Britannica, Vol. 13 pages 526 527 referred to.

ition No. 3727 of 1985. (Under Article 32 of the Constitution of India.) Petitioner in person . B. Datta, Additional Solictor General, R.K. Jain, Vinod Bobde, R.N. Trivedi, K.N. Bhat, Tapash Ray, B.R.L. Iyenger R.P. Singh, R.P. Kapur, Ravinder Narain, section Sukumaran, C.B. Singh, S.K. Dhingra, P.K. Jain, D.N. Goburdhan, Arvind Kumar, Ms. Laxmi Arvind, Vineet Kumar, Deepak K. Thakur, T.V. section N. Chari, Ms. Vrinda Grover, Badri Nath, Rakesh Khanna, Mukul Mudgal, A.K. Ghose, M.M. Gangadeb, Probir Mirtra, Sushil Kumar Jain, Saryakant, Pappy T. Mathews, Mrs, Mamta Kachhawaha, Mrs. Shobha Dikshit, G.S. Misra, S.R. Srivastava, Parijat Sinha, R. Mohan, Ms. Bina Gupta, Ranjit Kumar, Krishna Kumar, R.C. Verma, Arun Minocha, Sri Narain, E.C. Agrawala, S.R. Setia, H.K. Puri, T.S. Rana, Pramod Swarup, Ashok Grover, section Markandeya, Swarup. Ms, Lalita Kohli, K.C. Dua, Rajbirbal, R.A. Gupta and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. By our judgment dated September 22, 1987 in M.C. Mehta vs Union of India & others, , we issued certain directions with regard to the industries in which the business of tanning was being carried on at Jajmau near Kanpur on the banks of the river Ganga. On that occasion we directed that the case in respect of the municipal bodies and the industries which were responsible for the pollution of the water in the river Ganga would be taken up for consideration on the next date of hearing. Accordingly, we took up for consideration first the case against the municipal bodies. Since it was found that Kanpur was one of the biggest cities on the banks of the river Ganga, we took up for consideration the case in respect of the Kanpur Nagar Mahapalika. The Kanpur Nagar Mahapalika is established under the provisions of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as 'the Adhiniyam '). Sub section (3) of section 535 1 of the Adhiniyam, which is to be found in its 1st Chapter, provides that the 1st Chapter of the Adhiniyam shall come into operation at once and the remaining provisions in relation to a city shall come into operation from such date as the State Government may by notification in the official Gazette appoint in that behalf and different dates may be appointed for different provisions. In exercise of the powers conferred by the said sub section and in continuation of a notification dated September 28, 1959 bringing into operation sections 579 and 580 of the Adhiniyam, the Governor of Uttar Pradesh was pleased to issue a notification dated January 18, 1960 appointing the 1st day of February, 1960 as the date on which the remaining provisions of the Adhiniyam and the three Schedules, appended thereto, would come into operation in relation to the cities of Kanpur, Allahabad, Varanasi, Agra and Lucknow, as constituted under section 3 of the Adhiniyam. The duties and powers of the Mahapalika and Mahapalika authorities are set out in Chapter V of the Adhiniyam. Clauses (iii), (vii) and (viii) of section 114 of the Adhiniyam, which incorporates the obligatory duties of the Mahapalika, read as follows: "114. Obligatory duties of the Mahapalika It shall be incumbent on the Mahapalika to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely, . . . (iii) the collection and removal of sewage, offensive matter and rubbish and treatment and disposal thereof including establishing and maintaining farm or factory; . . . . . . . . . (vii) the management and maintenance of all Mahapalika waterworks and the construction or acquisition of new works necessary for a sufficient supply of water for public and private purposes; (viii) guarding from pollution water used for human consumption and preventing polluted water from being so used; . . . . . . . . ." 536 Sections 251, 388, 396, 297, 398, 405, and 407 of the Adhiniyam read as follows: "251. Provision of means for disposal of sewage The Mukhya Nagar Adhikari may, for the purpose of receiving, treating, storing, disinfecting, distributing or otherwise disposing of sewage, construct any work within or without the City or purchase or take on lease any land, building, engine, material or apparatus either within or without the City or enter into any arrangement with any person for any period not exceeding twenty years for the removal or disposal of sewage within or without the City. . . . . 388. Provision may be made by Mukhya Nagar Adhikari for collection, etc., of excrementitious and polluted matter (1) The Mukhya Nagar Adhikari may give public notice of his intention to provide, in such portion of the City as he may specify, for the collection, removal and disposal by Mahapalika agency, of all excrementitious and polluted matter from privies, urinals, and cess pools, and thereupon it shall be the duty of the Mukhya Nagar Adhikari to take measures for the daily collection, removal and disposal of such matter from all premises situated in such portion of the City. (2) In any such portion as is mentioned in sub section (1) and in any premises, wherever situated, in which there is a water closet or privy connected with a mahapalika drain, it shall not be lawful, except with the written permission of the Mukhya Nagar Adhikari, for any person who is not employed by or on behalf of the Mukhya Nagar Adhikari to discharge any of the duties of scavengers. . . . . . . . . . 396. Removal of carcasses of dead animals (I) It shall be the duty of the Mukhya Nagar Adhikari to provide for the removal of the carcasses of all animals dying within the City. (2) The occupier of any premises in or upon which 537 any animal shall die or in or upon which the carcass of any animal shall be found, and the person having the charge of any animal which dies in the street or in any open place shall, within three hours after the death of such animal or. if the death occurs at night within three hours after sunrise. report the death of such animal at the nearest office of the Mahapalika Health Department. (3) For every carcass removed by mahapalika agency, whether from any private premises or from public street or place, a fee for the removal of such amount as shall be fixed by the Mukhya Nagar Adhikari shall be paid by the owner of the animal, or, if the owner is not known. by the occupier of the premises in or upon which, or by the person in whose charge, the said animal died. Prohibition of cultivation, use of manure, irrigation injurious to health If the Director of Medical and Health Services or the Civil Surgeon or the Nagar Swasthya Adhikari certifies that the cultivation of any description of crops or the use of any kind of manure or the irrigation of land in any specified manner (a) in a place within the limits of a City is injurious or facilitates practices which are injurious to the health of persons dwelling in the neighbourhood, or (b) in a place within or beyond the limits of a City is likely to contaminate the water supply of such City or otherwise render it unfit for drinking purpose, the Mukhya Nagar Adhikari may by public notice prohibit the cultivation of such crop, the use of such manure or the use of the method of irrigation so reported to be injurious, or impose such conditions with respect thereto as may prevent the injury or contamination: Provided that when, on any land in respect of which such notice is issued, the act prohibited has been practised in the ordinary course of husbandry for the five successive years next preceding the date of prohibition, compensation shall be paid from the Mahapalika Fund to all persons interested therein for damage caused to them by such prohibition. 538 398. Power to require owners to clear away noxious vegetation The Mukhya Nagar Adhikari may, by notice. require the owner or occupier of any land to clear away and remove any vegetation or undergrowth which may be injurious to health or offensive to the neighbourhood. . . . . . . . . . 405. Power to require removal of nuisance arising from tanks, etc. The Mukhya Nagar Adhikari may by notice require the owner or occupier of any land or building to cleanse, repair, cover, fill up or drain off a private well, tank, reservoir. pool, depression or excavation therein which may appear to the Mukhiya Nagar Adhikari to be injurious to health or offensive to the neighbourhood: Provided that the owner or occupier may require the Mukhya Nagar Adhikari to acquire at the expense of the Mahapalika or otherwise provide, any land or rights in land necessary for the purpose of effecting drainage ordered under this section 407. Any place may at any time be inspected for purpose of preventing spread of dangerous disease The Mukhya Nagar Adhikari may at any time, by day or day night, without notice or after giving such notice of his intention as shall in the circumstances, appear to him to be reasonable, inspect any place in which any dangerous disease is reputed or suspected to exist, and take such mea sures as he shall think fit to prevent the spread of the said disease beyond such place. " The above provisions deal with the specific duties of the Nagar Mahapalika or the Mukhya Nagar . Adhikari appointed under the Adhiniyam with regard to the disposal of sewage and protection of the environment in or around the City to which the Adhiniyam applies. There are almost similar provisions in sections 7, 189, 19 l and other provisions of the Uttar Pradesh Municipalities Act, 1916 which applies to the smaller municipal bodies. The Uttar Pradesh Water Supply and Sewerage Act, 1975 imposes statutory duties on the authorities mentioned therein regarding the provision of water supply to the cities and towns and construction of sewerage systems in them. The perusal of these provisions in the laws governing the local bodies shows that the 539 Nagar Mahapalikas and the Minicipal Boards are primarily responsible for the maintenance of cleanliness in the areas under their jurisdiction and the protection of their environment. We have, in the judgment delivered by us on September 22, 1987, briefly referred to the (Act No. 6 of 1974) (hereinafter referred to as 'the Water Act ') in which provisions have been made for the establishment of the Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith. In the Water Act the expressions 'pollution ', 'sewage effluent ', 'sewer ', 'stream ', and 'trade effluent ' are defined as follows: "2 Definitions In this Act, unless the context otherwise requires . . . . . . (e) 'pollution ' means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or treade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms; . . (g) 'sewage effluent ' means effluent from any sewerage system or sewage disposal works and includes sullage from open drains; (gg) 'sewer ' means any conduit pipe or channel, open or closed, carrying sewage or trade effluent; . (j) 'stream ' includes (i) river; 540 (ii) water course (whether flowing or for the time being dry); (iii) inland water (whether natural or artificial); (iv) sub terranean waters; (v) sea or tidal waters to such extent or, as the case may be, to such point as the State may, by notification in the official Gazette, specify in this behalf; (k) 'trade effluent ' includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any trade or industry, other than domestic sewage . " Section 3 and 4 of the Water Act provide for the constitution of the Central Board and State Boards respectively. A State Board has been constituted under section 4 of the Water Act in the State of Uttar Pradesh. Section 16 of the Water Act sets out the functions of the Central Board and section 17 of the Water Act lays down the functions of the State Board. The functions of the Central Board are primarily advisory and supervisory in character. The Central Board is also required to advise the Central Government on any matter concerning the prevention and control of water pollution and to co ordinate the activities of the State Boards. The Central Board is also required to provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution. The functions of the State Board are more comprehensive. In addition to advising the State Government on any matter concerning the prevention, control or abatement of water pollution, the State Board is required among other things (i) to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and to secure the execution thereof, (ii) to collect and disseminate information relating to water pollution and the prevention, control or abatement thereof; (iii) to encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; (iv) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents; (v) to review plans, specifications or other data relating to plants set up for the treatment of 541 water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by the Water Act; (vi) to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resources of different regions and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution; and (vii) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents. The State Board has been given certain executive powers to implement the provisions of the Water Act. Sections 20, 21 and 23 of the Water Act confer power on the State Board to obtain information necessary for the implementation of the provisions of the Water Act, to take samples of effluents and to analyse them and to follow the procedure prescribed in connection therewith and the power of entry and inspection for the purpose of enforcing the provisions of the Water Act. Section 24 of the Water Act prohibits the use of stream or well for disposal of polluting matters etc. contrary to the provisions incorporated in that section. Section 32 of the Water Act confers the power on the State Board to take certain emergency measures in case of pollution of stream or well. Where it is apprehended by a Board that the water in any stream or well is likely to be polluted by reason of the disposal of any matter therein or of any likely disposal of any matter therein, or otherwise, the Board may under section 33 of the Water Act make an application to a court not inferior to that of a Presidency Magistrate or a Magistrate of the first class, for restraining the person who is likely to cause such pollution from so causing. The Environment (Protection) Act, 1986, which has also been referred to in out earlier judgment, also contains certain provisions relating to the control, prevention and abatement of pollution of water and one significant provision in that Act is what is contained in section 17 thereof, which provides that where an offence under that Act is committed by any Department of Government, the Head of that Department shall be deemed to be guilty of the offence and is liable to be punished. It is unfortunate that although Parliament and the State Legislature have enacted the aforesaid laws imposing duties on the Central and State Boards and the municipalities for prevention and control of 542 pollution of water, many of those provisions have just remained on paper without any adequate action being taken pursuant thereto. After the above petition was filed and notice was sent to the Uttar Pradesh State Board constituted under the Water Act, an affidavit has been filed before this Court by Dr. G.N. Misra, Scientific officer of the U.P. Pollution Control Board setting out the information which the Board was able to collect regarding the measures taken by the several local bodies and also by the U.P. Pollution Control Board in order to prevent the pollution of the water flowing in the river Ganga. A copy of the report relating to the inspection made at Kanpur on 23.11.87/24.11.87 by Shri Tanzar Ullah Khan, Assistant Environmental Engineer and Shri A.K. Tiwari, Junior Engineer enclosed to the counter affidavit as Exhibit K 5 reads thus: "The inspection made on 23.11.87/24.1.87 alongwith Sri A.K. Tiwari, Junior Engineer. Following are the facts observed at the time of inspection. Kanpur town is situated on the southern bank of river Ganges. The present population of the town is approximately 20 lacs. The city is covered with piped water supply. The city has developed between river Ganges on the north side and river Pandu on the south side. G.T. Road divides the city into two halves. In the north side most of the area is covered by sewerage system and the sullage/sewage is discharged without treatment into river Ganges through 17 nalas including sewerage by pass channel at Jajmau. In the south side there is no sewerage system and the sewage/sullage are discharged without treatment into river Pandu through 5 nalas. River Pandu joins river Ganges near Fatehpur(Sketch enclosed). The Kanpur Nagar mahapalika has not yet submitted any proposal of sewage treatment works to the Board. 543 6. Mr. Ikramur Rahman, A.E. Nagar Mahapalika told the Kanpur town is covered under Ganga Action Plan and following are the proposals (A) U. P. Jal Nigam (1) Re modelling of sewage pumping station at Jajmau and improvement to sewage farm. (2) Nala Tapping. (3) Sewage Treatment Plant. (B) Kanpur Jal Sansthan (1) Cleaning of Trunk and main sewers. (C) Integrated Environmental and sanitary Engineer project is being executed under the Dutch Assistance in Jajmau Area. (1) Crash Programme (is to remove deficiencies in the existing sanitary facilities) (2) Laying of Industrial sewer. (3) U.A.S.B. Sewage Treatment Plant. Sd/ Sd/ A.K.TIWARI (TANZAR ULLAH KHAN) J.E. ASSTT. ENVIRONMENTAL ENGINEER. " Appendix A/1 to 'An Action Plan for Prevention of Pollution of the Ganga ' gives the following particulars relating to the quantity of sewerage generated in the City of Kanpur which is discharged into the river Ganga and other relevant matters: KANPUR Population Estimated water Estimated sewage Treatment in 1981 supply in 1981 generated (70% of the water supply to the city 544 . . . . . . . . . . 16.39 lacks 392.14 million 274.50 million Nil litres a day litres a day . . . . . . . . . . It is thus seen that 274.50 million litres a day of sewage water is being discharged into the river Ganga from the city of Kanpur, which is the highest in the State of Uttar Pradesh and next only to the city of Calcutta which discharges 580. 17 million litres a day of sewage water into the river Ganga. Para 4 of the affidavit filed by Shri Jai Shanker Tewari, Executive engineer of Kanpur Nagar Mahapalika reads thus: "4. That the pollution in river Ganga from Kanpur is occurring because of following reasons: (i) About 16 nalas collecting sullage water, sewage, textile waste, power plant waste and tannery effluents used to be discharged without any treatment into the river. However some Nalas have been trapped now. (ii) The dairies located in the city have a cattle population of about 80.000. The dung, fodder waste and other refuse from this cattle population is quantitatively more than the sullage from the city of human population of over 20 lakhs. All this finds its way into the sewerage system and the nalas in the rainy season. It has also totally choked many branches of sewers and trunk sewers resulting in the overflow of the system. (iii) The night soil collected from the unsewered areas of the city and thrown into the nalas. (iv) There are more than 80 tanneries in Jajmau whose effluent used to be directly discharged into the river. (v) The total water supply in Kanpur is about 55 mil lion gallons per day. After use major part of it goes down the drains, nalas and sewers; sewage is taken to Jajmau sewage pumping station and a part of it is being supplied to sewage farms after diluting it with raw ganges water and the remaining part is discharged into the river. (vi) Dhobi Ghats. (vii) Defecation by economically weaker sections. " 545 The affidavit further states that the U.P. Jal Nigam, the U.P. Water Pollution Control Board, the National Environmental Engineering Research Institute, the Central Leather Research Institute, the Kanpur Nagar Mahapalika, the Kanpur Development Authority and the Kanpur Jal Sansthan have started taking action to minimise the pollution of the river Ganga. It is also stated therein that the financial assistance is being provided by the Central Ganga Authority through Ganga Project Directorate, State Government, the World Bank, the Dutch Government etc. for implementing the said measures. The said affidavit gives information about the several works undertaken at Kanpur for minimising the pollution of the river Ganga. It also states that Rs.493.63 lacs had been spent on those works between the years 1985 and 1987 and that the total allocation of funds by the Central Ganga Authority for Kanpur is Rs.3694.94 lacs and that upto the end of the current financial year it is proposed to spend Rs.785.58 lacs (1985 to 1987 88) towards various schemes to be completed under Ganga Action Plan. The affidavit points out that in Kanpur City sewer cleaning has never been done systematically and in a planned way except that some sewers were cleaned by the U.P. Jal Nigam around 1970. The main reasons for mal functioning and choking of the city sewerage, according to the affidavit, are (i) throwing or discharging of solids, clothes, plastics, metals etc. into the sewerage system; (ii) throwing of cow dung from dairies which are located in every part of the city which consists of about 80,000 cattle; (iii) laying of under sized sewers specially in labour colonies; (iv) throwing of solid wastes and malba from construction of buildings into sewers through manholes; (v) non availability of mechanical equipment for sewer cleaning works; and (vi) shortage of funds for proper maintenance. It is asserted that the discharge of untreated effluents into the river Ganga will be stopped upto 80% by March, 1988. Shri M.C. Mehta, the petitioner herein, drew our attention to the Progress Report of the Ganges Action Plan (July 1986 January 1987) prepared by the Industrial Toxicology Research Centre, Council of Scientific & Industrial Research. At page 20 of the said report the details of the analysis of the Ganga water samples collected during August, 1986 to January, 1987 from Uttar Pradesh region are furnished. That report shows that the pollution of the water in the river Ganga is of the highest degree at Kanpur. The Ganga water samples taken at Kanpur show that the water in the river Ganga at Kanpur consisted of 29.200 units (mg/ml) of iron in the month of August, 1986 when the ISI limit for river water is 0.3 and 0.900 (mg/ml) of manganese whereas the WHO limit of manganese for drinking water is 546 0.05. The Progress Report for the period February 1987 June. 1987 of Microlevel Intensive Monitoring of Ganga under Ganga Action Plan describes the samples of the water taken from the river Ganga at Kanpur thus: "B.O.D. (Bio oxygen Demand) values are found to be higher than prescribed values of l. S.I. C.O.D. (Chemical oxygen Demand) values are also found to be higher. These values clearly indicate that river water is not fit for drinking, fishing and bathing purposes. Table II further shows that Total Coliform and Fecal Coliform bacteria are always found very high. This is due to disposal of large quantity of untreated municipal waste into river Ganga. These high values of bacteria indicate that water is not fit for drinking, bathing and fishing purpose. To improve quality of water in Ganga, all nullahs should be trapped immediately and raw water should be treated conventionally at water works and disinfected by chlorination " (underlining by us) In the concluding part of the said Progress Report it is stated thus: "The Ganga is grossly polluted at Kanpur. All nullahs are discharging the polluted waste water into river Ganga. But Jajmau by pass channel, Sismau, Muir Mill, Golf Club and Gupta Ghat nullah are discharging huge quantities of polluted waste water, To improve the water quality of Ganga all major nullahs should be diverted and treated. Combined treatment should be provided for Jajmau tanneries. Effluent treatment plants should be installed by all major polluting industries. " It is needless to say that in the tropical developing countries a large amount of misery, sickness and death due to infectious diseases arises out of water supplies. In Lall 's Commentaries on Water and Air Pollution Laws (2nd Edition) at pages 331 and 333 it is observed thus: "In the tropics, we cannot safely take such a limited 547 view. Such Water borne diseases as malaria, schistosomiasis, guinea worm and yellow fever are either terrible scourges of, or threats to, many tropical populations. The hazards from bad water are thus much greater. Poverty is much more serious for many tropical areas; in the rural areas where most people live and around the edges of the cities, which are the fastest growing communities. most people cannot afford a conventionally good water supply at present, and the choice in the short run may be between doing nothing and providing somewhat improved supply. If an ideal water system is not possible, there are options as to what needs should be met by the partial improvements. To make the right decisions we need again the broad picture of water related diseases. So, because of these two tropical characteristics warmth and poverty a wider view than in temperate lands is necessary.(p.331) . . . . . . Water borne diseases The classical water borne diseases are due to highly infective organisms where only rather few are needed to infect someone, relative to the levels of pollution that readily occur. The two chief ones have a high mortality if untreated and are diseases which a community is very anxious to escape: Typhoid and cholera. Both are relatively fragile organisms whose sole reservoir is man. These two diseases occur most dramatically as the 'common source out break where a community water supply gets contaminated by faeces from d person suffering from, or carrying, one of the infections. Many people drink the water and a number of these fall ill from the infection at about the same time. Typhoid is the most cosmopolitan of the classical water borne infections. In man it produces a severe high fever with generated systemic, more than intestinal, symptoms. The bacteria are ingested and very few are sufficient to infect. The typhoid patient is usually too ill to go out polluting the water and is not infective prior o falling sick. However, a small proportion of those who recover clinically continue to pass typhoid bacteria in their faeces for 548 months or years; these carriers are the source of water borne infections. Gallstones predispose to the carrier state as the bacteria persist in the inflamed gall bladder. In the tropics, lesions of Schistosoma haematobium in the bladder also act as nide of infection, producing urinary typhoid carriers, whilst rectal schistosomiasis combined with typhoid leads to a persistent sever fever lasting many months. Typhoid bacteria survive well in water but do not multiply there. Cholera is in some ways similar to typhoid, but its causative bacteria are more fragile and the clinical course is extremely dramatic. In classical cholera the onset of diarrhoea is sudden and its volume immense so that the untreated victim has a high probability of dying from dehydration within 24 hours or little more. Several other infections are water borne but are less important than typhoid and cholera. Leptospirosis, due to a spirochaete, has its reservoir in wild rodents which pollute the water. Leptospis can penetrate the skin as well as being ingested. They produce jaundice and fever, called .Weil 's disease, which is severe but not common. ' The amount of suffering which the members of the public are likely to undergo by using highly polluted water can be easily gathered from the above extract. In the book entitled 'Water Pollution and disposal of Waste Water on Land ' (1983) by U.N. Mahida. I.S.E. (Retd) the problem of water pollution, the benefits of control of pollution and the urgency of the problem have been dealt with. At pages l, 2, 4 and S of the said book it is observed thus: "As long as the human population was small and communities were scattered over large areas of land, the disposal of human wastes created no problems. People could defecate in areas surrounding villages and other habitations and leave it to nature to dispose of the waste by assimilation in the surrounding land and air. But as communities became more concentrated and villages and towns grew, such a mode of disposal by natural agencies came to be replaced by organised disposal, though again through 549 the agency of natural land and soil columns. The collection of human excreta and its disposal in earthen trenches was resorted to by many towns and adopted the basket privy system. The introduction of a system of water borne sewage created new problems in the disposal of human wastes, as now along with the earlier problem of getting rid of solid wastes, i.e., human excreta, the problem of the disposal of the water employed for the removal of human wastes had also to be faced. This was the origin of the problem of sewage disposal. At first, the natural instinct was to channelize the sewage the soiled water to natural streams and rivers. For a time this mode of disposal was even considered quite efficacious. Such methods did not create difficulties as sewage discharges were small as compared to the stream flow. But with the increased discharge of progressively large quantities of sewage, polluted streams became a serious menace to public health. NATURE OF THE PROBLEM The introduction of modern water carriage systems transferred the sewage disposal from the streets and the surroundings of townships to neighbouring streams and rivers. This was the beginning of the problem of water pollution. It is ironic that man, from the earliest times, has tended to dispose of his wastes in the very streams and rivers from which most of his drinking water is drawn. Until quite recently this was not much of a problem, but with rapid urbanisation and industrialisation, the problem of the pollution of natural waters is reaching alarming proportions. The most disturbing feature of this mode of disposal is that those who cause water pollution are seldom the people who suffer from it. Cities and industries discharge their untreated or only partially treated sewage and industrial waste waters into neighbouring streams and thereby remove waste matter from their own neighbourhood. But in doing so, they create intense pollution in streams and rivers and expose the downstream riparian population to dangerously unhygienic conditions. In addition to the with 550 drawal of water for downstream towns and cities, in many developing countries, numerous villages and riparian agricultural population generally rely on streams and rivers for drinking water for themselves and their cattle, for cooking, bathing, washing and numerous other uses. It is thus riparian population that specially needs protection from the growing menace of water pollution. (pages 1 and 2) . . . . . . . . . BENEFITS OF CONTROL The benefits which result from the prevention of water pollution include a general improvement in the standard of health of the population, the possibility of restoring stream waters to their original beneficial state and rendering them fit as sources of water supply, and the maintenance of clean and healthy surroundings which would then offer attractive recreational facilities. Such measures would also restore fish and other aquatic life. Apart from its menace to health, polluted water considerably reduces the water resources of a nation. Since the total amount of a country 's utilisable water remains essentially the same and the demand for water is always increasing, schemes for the prevention of water pollution should, wherever possible, make the best use of treated waste waters either in industry or agriculture. Very often such processes may also result in other benefits in addition to mere reuse. The application of effluents on agricultural land supplies not only much needed water to growing crops but also manurial ingredients; the recovery of commercially valuable ingredients during the treatment of industrial waste waters often yields by products which may to some extent offset the cost of treatment If appropriate financial credits could be calculated in respect of these and other incidental benefits, it would be apparent that measures for the prevention of pollution are not unduly costly and are within the reach of all nations, advanced or developing. It is fortunate that people are be coming more receptive to the idea of sharing the financial burden for lessening pollution. It is now recognised in most 551 countries that it is the responsibility of industries to treat their trade wastes in such a way that they do not deteriorate the quality of the receiving waters, which otherwise would make the utilisation of such polluted waters very difficult or costly for downstream settlers. URGENCY OF THE PROBLEM The crucial question is not whether developing countries can afford such measures for the control of water pollution but it is whether they can afford to neglect them. The importance of the latter is emphasised by the fact that in the absence of adequate measures for the prevention or control of water pollution, a nation would eventually be confronted with far more onerous burdens to secure wholesome and adequate supplies of water for different purposes. If developing countries embark on suitable pollution prevention policies during the initial stages of their industrialisation, they can avoid the costly mistakes committed in the past by many developed countries. It is, however, unfortunate that the importance of controlling pollution is generally not realised until considerable damage has already been done; (Pages 3 and 4)" In common law the Municipal Corporation can be restrained by an injunction in an action brought by a reparian owner who has suffered on account of the pollution of the water in a river caused by the Corporation by discharging into the river insufficiently treated sewage from discharging such sewage into the river. In Pride of Derby and Derbyshire Angling Association vs British Celanese Ltd., [19531 Chancery 149 the second defendant, the Derby Corporation admitted that it had polluted the plaintiff 's fishery in the River Derwent by discharging into it insufficiently treated sewage, but claimed that by the Derby Corporation Act, 1901 it was under a duty to provide a sewerage system, and that the system which had accordingly been provided had become inadequate solely from the increase in the population of Derby. The Court of Appeal held that it was not inevitable that the work constructed under the Act of 1901 should cause a nuisance, and that in any case the Act on its true construction did not authorise the commission of a nuisance. The petitioner in the case before us is no doubt not a riparian owner. He is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga and his right to maintain the petition cannot be dis 552 puted. The nuisance caused by the pollution of the river Ganga is a public nuisance, which is wide spread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person lo take proceedings to stop it as distinct from the community at large. The petition has been entertained as a Public Interest Litigation. On the facts and in the circumstances of the case we are of the view that the Petitioner is entitled to move this Court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Boards constituted under the Water Act. We have already set out the relevant provisions of the statute which impose those duties on the authorities concerned. On account of their failure to obey the statutory duties for several years the water in the river Ganga at Kanpur has become so much polluted that it can no longer be used by the people either for drinking or for bathing. The Nagar Mahapalika of Kanpur has to bear the major responsibility for the pollution of the river near Kanpur city. It is no doubt true that the construction of certain works has been undertaken under the Ganga Action Plan at Kanpur in order to improve the sewerage system and to prevent pollution of the water in the river Ganga. But as we see from the affidavit filed on behalf of the authorities concerned in this case the works are going on at a snail 's pace. We find from the affidavits filed on behalf of the Kanpur Nagar Mahapalika that certain target dates have been fixed for the completion of the works already undertaken. We expect the authorities concerned to complete those works within the target dates mentioned in the counter affidavit and not to delay the completion of the works beyond those dates. It is, however, noticed that the Kanpur Nagar Mahapalika has not yet submitted its proposals for sewage treatment works to the State Board constituted under the Water Act. The Kanpur Nagar Mahapalika should submit its proposals to the State Board within six months from today. It is seen that there is a large number of dairies in Kanpur in which there are about 80,000 cattle. The Kanpur Nagar Mahapalika should take action under the provisions of the Adhiniyam or the relevant bye laws made thereunder to prevent the pollution of the water in the river Ganga on account of the waste accumulated at the dairies. The Kanpur Nagar Mahapalika may either direct the dairies to be shifted to a place outside the city so that the waste accumulated at the dairies does not ultimately reach the river Ganga or in the alternative it may arrange for the removal of such waste by employing motor vehicles to transport such waste from the existing dairies in which even 553 the owners of the dairies cannot claim any compensation. The Kanpur Nagar Mahapalika should immediately take action to prevent the collection of manure at private manure pits inside the city. The Kanpur Nagar Mahapalika should take immediate steps to increase the size of the sewers in the labour colonies so that the sewage may be carried smoothly through the sewerage system. Wherever sewerage line is not yet constructed steps should be taken to lay it. Immediate action should also be taken by the Kanpur Nagar Mahapalika to construct sufficient number of public latrines and urinals for the use of the poor people in order to prevent defecation by them on open land. The proposal to levy any charge for making use of such latrines and urinals shall be dropped as that would be a reason for the poor people not using the public latrines and urinals. The cost of maintenance of cleanliness of those latrines and urinals has to be borne by the Kanpur Nagar Mahapalika. It is submitted before us that whenever the Board constituted under the Water Act initiates any proceedings to prosecute industrialists or other persons who pollute the water in the river Ganga, the persons accused of the offences immediately institute petitions under section 482 of the Code of Criminal Procedure 1973 in the High Court and obtain stay orders thus frustrating the attempt of the Board to enforce the provisions of the Water Act. They have not placed before us the facts of any particular case. We are, however, of the view that since the problem of pollution of the water in the river Ganga has become very acute the High Courts should not ordinarily grant orders of stay of criminal proceedings in such cases and even if such an order of stay is made in any extra ordinary case the High Courts should dispose of the case within a short period, say about two months, from the date of the institution of such case. We request the High Courts to take up for hearing all the cases where such orders have been issued under sections 482 of the Code of Criminal Procedure, 1973 staying prosecutions under the Water Act within two months. The counsel for the Board constituted under the Water Act shall furnish a list of such cases to the Registrar of the concerned High Court for appropriate action being taken thereon. One other aspect to which our attention has been drawn is the practice of throwing corpses and semi burnt corpses into the river Ganga. This practice should be immediately brought to an end. The co operation of the people and police should be sought in enforcing 554 this restriction. Steps shall be taken by the Kanpur Nagar Mahapalika and the Police authorities to ensure that dead bodies or half burnt bodies are not thrown into the river Ganga. Whenever applications for licences to establish new industries are made in future, such applications shall be refused unless adequate provision has been made for the treatment of trade effuents flowing out of the factories. immediate action should be taken against the existing industries if they are found responsible tor pollution of water. Having regard to the grave consequences of the pollution of water and air and the need for protecting and improving the natural environment which is considered to be one of the fundamental duties under the Constitution [vide Clause (g) of Article 51A of the Constitution] we are of the view that it is the duty of the Central Government to direct all the educational institutions throughout India to teach atleast for one hour in a week lessons relating to the protection and the improvement of the natural environment including forests, lakes, L) livers and wild life in the first ten classes. The Central Government shall get text books written for the said purpose and distribute them to the educational institutions free of cost. Children should be taught about the need for maintaining cleanliness commencing with the cleanliness of the house both inside and outside, and of the streets in which they live. Clean surroundings lead to healthy body and healthy mind. Training of teachers who teach this subject by the introduction of short term courses for such training shall also be considered. This should be done throughout India. In order to rouse amongst the people the consciousness of cleanliness of environment the Government of India and the Governments 1. Of the States and of the Union Territories may consider the desirability of organising 'Keep the city clean ' week (Nagar Nirrnalikarana Saptaha), 'Keep the town clean week (Pura Nirmalikarana saptaha) and 'Keep the village clean week (Grama Nirmalikarna Saptaha) in every city, town and village throughout India at least once a year. During that week the entire city, town or village should be kept as far as possible clean, tidy and free from pollution of land, water and air. The organisation of the week should be entrusted to the Nagar Mahapalikas, Municipal Corporations, Town Municipalities, Village Panchayats or such other local authorities having jurisdiction over the area in question. If the authorities decide to organise such a week it may not be celebrated in the same week throughout India but may he staggered depending upon the convenience of the particular city, town 555 or village. During that week all the citizens including the members of the executive, members of Parliament and the State Legislatures, members of the judiciary may be requested to co operate with the local authorities and to take part in the celebrations by rendering free personal service. This would surely create a national awareness of the problems faced by the people by the appalling all round deterioration of the environment which we are witnessing today. We request the Ministry of Environment of the Government of India to give a serious consideration to the above suggestion. What we have stated above applies mutatis mutandis to all other Mahapalikas and Municipalities which have jurisdiction over the areas through which the river Ganga flows. Copies of this judgment shall be sent to all such Nagar Mahapalikas and Municipalities. The case against the Nagar Mahapalikas and Municipalities in the state of Uttar Pradesh shall stand adjourned by six months. Within that time all the Nagar Mahapalikas and Municipalities in the State of Uttar Pradesh through whose areas the river Ganga flows shall file affidavits in this Court explaining the various steps they have taken for the prevention of pollution of the water in the river Ganga in the light of the above judgment. The case as against the several industries in the State of Uttar Pradesh which are located on the banks of the river Ganga will he taken up for hearing on the 9th of February, 1988. L. Petition disposed of.

% This Court in M.C. Mehta vs Union of India & ors., had issued certain directions with regard to the industries in which the business of tanning was being carried on near Kanpur on the banks of the River Ganga. On that occasion, the Court had directed that the case in respect of the municipal bodies and the industries which were responsible for the pollution of the water in the river Ganga would be taken up next, and accordingly, the Court took up for consideration this case against the Kanpur Nagar Mahapalika, since it was found that Kanpur was one of the biggest cities on the banks of the river Ganga. Under the laws governing the local bodies, the nagar Mahapalikas and Municipal Boards were primarily responsible for the maintenance of cleanliness in the areas under their jurisdiction and the protection of their environments. Under the water (Prevention and Control of Pollution) Act, 1974 (the 'Water Act ') provisions had been made for the establishment of Boards for the prevention and control of water pollution, etc. The Environment (Protection) Act, 1986, contained provisions relating to the control, prevention and abatement of pollution of water. Although Parliament and the State Legislature had thus enacted laws, imposing duties on the Central and State Boards and the municipalities for the prevention and control of pollution of water, no adequate action had been taken pursuant to many of their provisions. 274.50 million litres a day of sewage water was being discharged into the river Ganga from the city of Kanpur, which was the highest in the State of U.P. Sewer cleaning had never been done systematically in Kanpur, and there was mal functioning and choking of the city sewerage. Pollution of water in the river Ganga was of the highest degree at Kanpur, and a large extent of misery, sickness and death due to infectious diseases arose out of water supplies. The petitioner filed this writ petition as a Public Interest Litigation against the public nuisance 531 caused by the serious pollution of the river Ganga, for protecting the lives of the people using the Ganga water. Disposing of the petition, the Court, ^ HELD: The petitioner before the Court was no doubt not a riparian owner. He was a person interested in protecting the lives of the people who made use of the water flowing in the river Ganga and his right to maintain the petition could not be disputed. The nuisance caused by the pollution was a public nuisance, wide spread in range and indiscriminate in its effect, and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition was entertained as a Public Interest Litigation. On the facts and in the circumstances of the case, the Court was of the view that the petitioner was entitled to move the Court in order to enforce the statutory provisions which imposed duties on the municipal authorities and the Boards under the water Act, on account of failure of which to obey the statutory duties for several years, the water in the River Ganga at Kanpur had become so much polluted that it could no longer be used by the people for drinking or bathing. The Nagar Mahapalika of Kanpur had to bear the major responsibility for the pollution of the river near the Kanpur city. The construction of certain works, undertaken under the Ganga Action Plan at Kanpur to improve the sewerage system and prevent pollution of the water in the river Ganga, were going on at a snail 's pace. The Court expected the authorities concerned would complete those works within the target dates mentioned in their counter affidavits. The Court noticed that the Kanpur Nagar Mahapalika had not yet submitted its proposals for sewage treatment works to the State Board constituted under Water Act, and directed that the mahapalika should submit its proposals to the State Board within six months (from the date of this judgment). [551H; 552A F] The Court further directed; (i) The Kanpur Nagar Mahapalika should take action under the provisions of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, or the relevant bye laws made thereunder to prevent pollution of the water in the river Ganga by waste accumulated at the large number of dairies in Kanpur having about 80,000 cattle. The dairies might either be shifted outside the city so that the waste at the dairies did not ultimately reach the river Ganga, or, in the alternative, the Mahapalika might arrange for the removal of the waste by motor vehicles, in which 532 event the owners of the diaries could not claim any compensation. The Mahapalika should immediately take action to prevent collection of manure at private manure pits inside the city; [552G H; 553A] (ii) The Kanpur Nagar Mahapalika should take immediate steps to increase the size of the sewers in the labour colonies, so 13 that sewage might be carried smoothly through the sewerage system, and wherever sewerage line was not yet constructed, steps should be taken to lay it; [553B] (iii) Immediate action should also be taken by the Kanpur Nagar Mahapalika to construct sufficient number of public latrines and urinals to prevent defecation by people on the open land. The proposal to levy any charge for use of such latrines and urinals shall be dropped as that would be a reason for poor people not to use the public latrines and urinals. The cost of maintenance of cleanliness of those latrines and urinals had to be borne by the Mahapalika. [553C] The Court was of the view that since the problem of pollution of the water in the river Ganga had become very acute, the High Court should not ordinarily grant stay of criminal proceedings in cases where the Board constituted under the Water Act initiated any proceedings to prosecute industrialists or other persons who polluted the water in the Ganga, as the stay orders on petitions under section 482 of the Code of Criminal Procedure, 1973, frustrated the attempt of the Board to enforce the provisions of the Water Act, and further, even if such an order of stay was made in any extraordinary case, the High Court should dispose of the case within a short period, say about two months from the date of the institution of the case, and further, should take up for hearing all the cases where such orders had been issued under section P 482, Cr. P.C., staying prosecutions under the Water Act. [553E G] The Court further directed that the practice of throwing corpses and semi burnt corpses into the river Ganga should be immediately brought to an end. Steps should be taken by the Kanpur Nagar Mahapalika and the police authorities to ensure that the dead bodies or G half burnt bodies were not thrown into the river Ganga. [553H; 554A] In future j application for licences to establish new industries should be refused unless adequate provision had been made for the treatment of trade effluents flowing out of the factories, and immediate action should be taken against the existing industries found responsible for the pollution of water. [554B] 533 Having regard to the grave consequences of the Pollution of water and air and need for protecting and improving the natural environment, considered to be one of the fundamental duties under the Constitution, it was the duty of the Central Government to direct all the educational institutions throughout India to teach at least for one hour in a week lessons on the protection and improvement of the natural environment including forests, lakes, rivers and wild life in the first ten classes. The Central Government should get the text books written for the said purpose and distributed to the educational institutions free of cost. Training of teachers, who teach this subject, by the introduction of short term courses for such training shall also be considered. This should be done throughout India. [554C E] The above directions of the Court would apply mutatis mutandis to all the other Mahapalikas and Municipalities, having jurisdiction over the areas through which the river Ganga flows.[555C] OBSERVATION: The children should be taught about the need for maintaining cleanliness, of the houses both inside and outside and of the streets in which they live. Clean surroundings lead to healthy body and healthy mind. [554E] In order to rouse amongst the people the consciousness of cleanliness of environments, the Government of India and the Governments of the States and the Union Territories may consider the desirability of organising 'keep the city clean ' week (Nagar Nirmalikarana Saptaha) and 'keep the village clean ' week (Gram Nirmalikarana Saptaha) in every city, town and village throughout India at least once a year. During that week, the entire city, town or village should be kept, as far as possible, clean tidy and free from pollution of land, water and air. The organisation of the week should be entrusted to the Nagar Mahapalikas, Town Municipalities, Municipal Corporation, Village Panchayats or such other authorities, having jurisdiction over the area in question. If the authorities decide to organise such a week it may not be celebrated in the same week throughout India but may be staggered depending upon the convenience of the particular city, town or village. During that week, all the citizens, including the members of the executive, Parliament, State Legislatures and Judiciary may be requested to co operate with the local authorities and take part in the celebrations by rendering free personal service. This would surely create a national awareness of the problems faced by the people by the appalling allround deterioration of the environment which is witnessed today. [554FM; 555A B] 534 M.C. Mehta vs Union of India & others, [1987] 4 S.C.C. 463 and Pride of Derby and Derbyshire Angling Association vs British Celanese Limited, [1953] Chancery 149.

: Special Leave Petition (Criminal) No. 1481 of 1984. From the Judgment and Order dated the 23rd January, 1984 of the Punjab and Haryana High Court in Crl. Appeal No. 45 of 1983. Harbans Lal and Balmokand Goyal for the Petitioner. The Order of the Court was delivered by DESAI, J. We are not inclined to grant special leave, but we make this short speaking order in order to keep the record straight that the dismissal of the special leave petition does not tentamount to affirmance of the order of the learned Judge of the High Court who for reasons utterly untenable interfered with teh 215 sentence imposed by the trial court and reduced it to sentence already undergone which in the facts and circumstances of the case was wholly impermissible. In Meet Singh vs State of Punjab,(1) this Court pointed out that Sec. 5(2) of the Prevention of Corruption Act prescribes a minimum sentence and discretion is conferred on the court to give less than the minimum for any special reasons to be recorded in writing. This Court examined what constitute special reasons for the purpose of Sec. 5(2) and pointed out that the reasons which weighed with the learned Judge in reducing the sentence to the sentence undergone could not be special reasons. Therefore, in our view, the learned Judge was entirely in error in showing a misplaced sympathy unsustainable in law. With these observations we reject the special leave petition. N.V.K. Petition dismissed.

Section 5 (2) of the Prevention of Corruption Act 1947 prescribes a minimum sentence and discretion is conferred on the Court to give less than the minimum for any 'special reasons ' to be recorded in writing. [109B] What constitute 'special reasons ' for the purpose of Section 5 (2) was laid down in Meet Singh vs State of Punjab, ; [109B] In the instant case, the High Court for reasons utterly untenable interfered with the sentence imposed by the trial court and reduced it to the sentence already undergone. It erred in showing a misplaced sympathy unsustainable in law. [214H; 215A] ^

No. 723 of 1989 etc. (Under Article 32 of the Constitution of India). G. Ramaswamy, Additional Solicitor General (N.P.), F.S. Nariman, G.L. Sanghi, G.Prabhakar, M. Rangaswamy, N.D.B. Raju, Ms. C.K. Sucharita, S.K. Agnihotri, P.R. Ramashesh, K.R. Nagaraja and Ms. Anita Sanghi for the appearing par ties. The following Judgments of the Court were delivered: RANGANATH MISRA, J. I have the benefit of reading the judgment prepared by my esteemed brethren Sawant and K. Ramaswamy, JJ. Brother Sawant has taken the view that section 20 of the Karnataka Act has not become void with the enforce ment of the , while Brother K. Ramaswamy has come to the contrary conclusion. Agreeing with the conclusion of Sawant, J., I have not found it possible to concur with Ramaswamy, J. Since an interesting question has arisen and in looking to the two judgments I have found additional reasons to support the conclusion of Sawant. J., I proceed to indicate the same in my separate judgment. These applications under Article 32 of the Constitution by a group of disgruntled applicants for contract carriage permits call in question action of the concerned transport authorities in not entertaining their applications under the provisions of the . (4 of 1939) made provision for grant of contract carriage permits. The Karnataka Contract Car riages (Acquisition) Act (Karnataka Act 21 of 1976) received assent of the President on 11th of March. but was declared to have come into force from 30th of January, 1976, when the corresponding Karnataka Ordinance 7 of 1976 had come into force. The long title of the Act indicated that it was an Act to provide for the acquisition of contract car riages and for matters incidental. ancillary or subservient thereto, and the preamble stated: 625 "Whereas contract carriages and certain other categories of public service vehicles are being operated in the State in a matter highly detrimental and prejudicial to public interest; And whereas with a view to prevent such misuse and also to provide better facilities for the transport of passengers by road and to give effect to the policy of the State towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; And whereas for the aforesaid purposes it is considered necessary to provide for the acquisition of contract carriages and certain other categories of public service vehicles in the State and for matters incidental, ancillary or subservient thereto . " Section 2 contains the declaration to the following effect: "It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Con stitution of India and the acquisition therefore of the contract carriages and other property referred to in section 4." Under ss 4 contract carriages owned or operated by contract carriage operators along with the respective per mits and/or certificates of registration, as the case may be, vested in the State absolutely free from encumbrances, and compensation for such acquisition was provided under the scheme of the Act. Section 14 prohibited application for any permit or fresh permit or renewal of existing permits for running of any contract carriage in the State by any private operator and all pending proceedings in relation to grant or renewal abated. Consequential provisions were made in sections 15 and 16 of the Act. Section 20 gave the Corporation the exclusive privilege of running contract carriages within the State to the exclusion of any provision under the 1939 Act. The vires of the Act was the subject matter of the decision of this 626 Court in a group of appeals in the case of the State of Karnataka & Anr. vs Shri Ranganatha Reddy & Anr., ; A Seven Judge Bench upheld the validity of the statute holding that the impugned statute was an 'acquisi tion Act ' within the ambit of Entry 42 of the Concurrent List under Schedule VII of the Constitution. The Court took note of the fact that even though it may have had some incidental impact on inter State trade or commerce it did not suffer from any lacuna on that count. Since the Act had been reserved for Presidential assent, to the extent section 20 made provisions contrary to those in the of 1939, was taken to be valid under article 254(2) of the Constitution. The (59 of 1988) being a Parliamen tary legislation was brought into force with effect from 1.7. 1989. Under section 1(2), the Act extended to the whole of India and, therefore, the Act became applicable to the State of Karnataka by the notification appointing the date of commencement of the Act. The 1988 Act has admittedly liberalised the provisions relating to grant of permits of every class including con tract carriages. Sections 73, 74 and 80 contain the relevant provisions in this regard. While section 73 provides for an application for such permit, section 74 contains the procedure for the consideration of the grant and section 80 contains a general provision that the transport authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act. It is the contention of the petitioners that with the enforcement of the of 1988 as a piece of central legislation, the provisions of section 20 of the Karnataka Act became void to the extent the state law was inconsistent with the provisions of the 1988 Act and, therefore, by operation of the provisions contained in article 254 of the Constitution, section 20 stood abrogated and the scheme of the 1988 Act became operative. The applications of the petitioners for grant of contract carriage permits were maintainable and should have been entertained and disposed of in accordance with the provi sions of the 1988 Act. It is the stand of the respondents, in particular of the Karnataka State Transport Undertaking, that the State Act is a legislation under a different entry and was not on the same subject. Therefore, the matter did not come within the ambit of article 254 of the Constitution. The State Act contin ues to hold the field and the transport authorities had rightly refused to entertain the petitioners ' applications. 627 The question for consideration is: Whether article 254( I) of the Constitution applies to the situation in hand and whether section 20 of the Karnataka Act being inconsistent with the provisions of sections 73, 74 and 80 of the 1988 Motor Vehi cles Act became void. It would be convenient to extract the provisions of article 254 of the Constitution at this stage and recount the background in which such provision was warrant ed. It is the common case of the parties that with the introduction of federalism and distribution of legislative powers and accepting a Concurrent List wherein in regard to specified subjects the Federal and the Federating State Legislatures had power to legislate, a provision of ration alisation became necessary. Section 107 of the Government of India Act, 1935, contained the provision to deal with such a situation. The Constituent Assembly accepted a similar mechanism and added a proviso to clause (2) of article 254 to meet the difficulties experienced in the intervening years. The Article reads thus: "254(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repug nancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concur rent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legis lature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. " 628 Though for some time there was difference of judicial opinion as to in what situation article 254 applies, decisions of this Court by overruling the contrary opinion have now concluded the position that the question of repugnancy can arise only with reference to a legislation falling under the Concurrent List: Bar Council of Uttar Pradesh vs State of U.P. & Anr., ; and Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552. This Court in Deep Chand vs State of Uttar Pradesh & Ors., ; ; T. Barai vs Henry Ah Hoe & Anr., ; and Hoechst Pharmaceuticals Ltd. & Anr. vs State of Bihar & Ors. , ; has laid down that cl. (1) of article 254 lays down the general rule and cl. (2) is an exception thereto; the proviso qualifies the exception. Therefore, while interpreting article 254 this position has to be kept in view. The situation of the 1939 being existing law and the Karnataka Act containing provision repugnant to that Act with Presidential assent for the State Act squarely came within the ambit of cl. (2) of the Article. That is how the State Act had over riding effect. The consideration of the present question has to be within the ambit of cl. (1) as the State law is the earlier legislation and the Parliamentary Act of 1988 came later and it is contended that the State legislation has provisions repugnant to provisions made in the 1988 Act. There can be no controversy that if there is repugnancy, the Parliamen tary legislation has to prevail and the law made by the State Legislature to the extent of repugnancy becomes void. In cl. (1) of article 254 it has been clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Concurrent List. The seven Judge Bench examining the vires of the Karnataka Act did hold that the State Act was an Act for acquisition and came within Entry 42 of the Concurrent List. That position is not disputed before us. There is unanimity at the Bar that the is a legislation coming within Entry 35 of the Concurrent List. Therefore, the Acquisition Act and the 1988 Act as such do not relate to one common head of legislation enumerated in the Concurrent List and the State Act and the Parliamentary statute deal with different mat ters of legislation. The language of cl. (2) is also similar though applica ble in a different situation. Apparently in one sense both the clauses operate on a similar level though in dissimilar context. In cl. (2) what is rele 629 vant is the words: 'with respect to that matter '. A Consti tution Bench of this court in Zaverbhai Amaidas vs State of Bombay, [1955] 1 SCR 799 emphasised that aspect. Venkatarama Ayyar, J. pointed out: "The important thing to consider with reference to this provision is whether the legislation is 'in respect of the same matter '. If the later legislation deals not with the matters which formed the subject of the earlier legisla tion but with other and distinct matters though of a cognate and allied character, then article 254(2) will have no applica tion. " A lot of light relevant to the aspect under considera tion is available from another decision of a Constitution Bench of this Court: (M. Karunanidhi vs Union of India, ; Atp. 263 of the Reports, it has been said: "It would be seen that so far as clause (1) of Article 54 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect of one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parlia ment and the State Legislatures. First, regarding the mat ters contained in List I, i.e., the Union List to the Sev enth Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned. both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e., the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain condi tions Parliament can do so. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances: 630 1. Where the provisions of a Central Act and a State Act in the Concurrent List are full.v inconsistent (Emphasis added) and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. Where, however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) or Article 254. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law fails within the four corners of the State List and en trenchment, if any, is purely incidental or inconsequential. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in its applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the provision to Article 254. " In Deep Chand vs State of Uttar Pradesh, supra, this court had pointed out that repugnancy between two statutes would arise if there was direct conflict between the two provisions and if the law made by Parliament and the law made by the State Legislature occupied the same field. It has already been stated that the State Act intended to eli 631 minate private operators from the State in regard to con tract carriages acquired under the existing permits, vehi cles and ancillary property and with a view to giving effect to a monopoly situation for the State undertaking made provision in section 20 for excluding the private operators. The 1988 Act does not purport to make any provision in regard to acquisition of contract carriage permits which formed the dominant theme or the core of the State Act. Nor does it in section 73 or section 74 indicate as to who the applicant shall be while laying down how an application for a contract carriage permit shall be made and how such a permit shall be granted. Section 80 of the 1988 Act does contain a liberalised provi sion in the matter of grant of permits but here again it has to be pointed out that the ancillary provision contained in section 20 of the Acquisition Act to effectuate acquisition does not directly run counter to the 1988 provision. Section 20 of the State Act creates a monopoly situation in favour of the State undertaking qua contract carriages by keeping all private operators out of the filed. Since sections 73, 74 and 80 of the 1988 Act do not contain any provision relating to who the applicants for contract carriages can or should be, and those sections can be applied without any difficulty to the applications of the State undertaking, and there does not appear to be any repugnancy between the two Acts for invoking article 254 of the Constitution. A provision in the State Act excluding a particular class of people for operating contract carriages or laying down qualifications for them would not run counter to the relevant provisions of the 1988 Act. A number of precedents have been cited at the hearing and those have been examined and even some which were not referred to at the bar. There is no clear authority in support of the stand of the petitioners where the State law is under one head of legislation in the Concurrent List; the subsequent Parliamentary legislation is under another head of legislation in the same List and in the working of the two it is said to give rise to a question of repugnancy. The State Act had done away with the private operators qua contract carriages within the State. It is true that the 1988 Act is applicable to the whole of India and, therefore, is also applicable to the State of Karnataka in the absence of exclusion of the State of Karnataka from its operation. But as has been pointed out already, there is no direct inconsistency between the two and on the facts placed in the case there is no necessary invitation to the application of cl. (1) of article 254 of the Constitution. 632 The writ petitions fail and are dismissed. SAWANT, J. This group of petitions raises a common question of law viz. whether the (hereinafter referred to as the MV Act 1988) has impliedly repealed the Karnataka Contract Carriages (Acquisition) Act, 1976 (hereinafter referred to as the Karnataka Act). The petitioners claim a declaration that the provisions of Sec. 14 and 20 of the Karnataka Act are invalid because of their repugnancy with the provisions of the MV Act, 1988, and a direction to respondent nos. 2 and 3, namely the Karnataka State Transport Authority and the Karnataka Re gional Transport Authority respectively, to consider their applications for the grant of contract carriage permits under Sec. 74 and 80 of the MV Act, 1988, without reference to the provisions of the Karnataka Act. The precise question that falls for consideration, therefore, is whether there is a repugnancy between the two legislations. The Karnataka Act, as its title shows, was enacted to provide for the acquisition of contract carriages and for matters incidental, ancillary and subservient thereto. It was enacted under Entry 42 of the Concurrent List read with Article 31 of the Constitution, in furtherance of Article 39(b) and (c) thereof. This is evident from the preamble, and Section 2 of the Act. The preamble states that since the contract carriages and certain other categories of public service vehicles were being operated in the State in a manner highly detrimental and prejudicial to public inter est, it was necessary to prevent the misuse, and to provide better facility for the transport of the passengers by road. It was also necessary to give effect to the policy of the State towards securing that the ownership and control of the material resources of the community were so distributed as best to subserve the common good and that the operation of the economic system did not result in the concentration of wealth and means of production to the common detriment. To effectuate the said intention it was considered necessary to enact the legislation. Section 2 of the Act makes a declara tion in the following words: "It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 of the Con stitution of India and the acquisition therefor of the contract carriages and other property referred to in Section 4. " 633 Under Section 4 of the Act every contract carriage owned or operated by contract carriage operator along with the permit or the certificate of registration or both as the case may be, vested in the State Government absolutely and free from all encumbrances. Further, a11 rights, title and interest of the contract carriage operators in the lands, buildings, workshops and other places and all stores, in struments, machinery, tools, plants, apparatus and other equipments used for the maintenance, repair of, or otherwise in connection with the service of the contract carriage as the State Government may specify in that behalf and all books of accounts, registers, records and all other docu ments of whatever nature relating to the contract carriages vested in the State Government absolutely and free from all encumbrances, and all the said property was deemed to have been acquired for public purpose. Section 6 provided for payment of compensation for the acquisition of all the said property. Since the avowed object of the Act was two fold, namely (i) to prevent the misuse of the operation of the contract carriages and to provide better facilities for the transport of passengers, and (ii) to give effect to the policy under lying Clauses (b) and (c) of Article 39 of the Constitution, it was also necessary to prevent the issue of fresh permits or renewal of the existing permits for running the contract carriages in the State to any private individual. Hence, Section 14 provided for a prohibition of the issue of fresh permit or renewal of the existing permit to any individual or the transfer of such permit to anyone except to the State Government or the Corporation which it may establish under the Karnataka State Road Transport Corporation Act, 1950. To make an alternative arrangement for running the contract carriages and to prevent both the misuse of the permits as well as concentration of wealth in the hands of a few indi viduals, Section 20 of the Act provided that all contract carriage permits granted or renewed till then would stand cancelled and the Corporation alone would be entitled to the grant or renewal of the said permits to the exclusion of all other persons, and that applications from persons other than the Corporation for the grant of such permit shall not be entertained. In State of Karntaka & Anr. vs Shri Ranganatha Reddy & Anr. ; , this Court upheld the validity of the said Act holding, among other things, that the Act was for acquisition of property and was in the public interest and for a public purpose. The Act, according to the Court, had nationalised the contract transport serv ice in the State and that was also for a public purpose as declared in the Act. It was also observed that if Articles 38 and 39 are to be given 634 effect to, then the State has progressively to assume the predominant and direct responsibility for setting up new industrial undertakings which would also include development of transport facilities. The State has also to become agency for planned national development, and the socialistic pat tern of society as the national objective required that public utility services should be in the public sector. The acquisition of road transport undertaking by the State, therefore, undoubtedly served the public purpose. It is thus clear from the provisions of the Karnataka Act that the whole object of the Act is to nationalise the contract carriage service in the State with a view to put an end to the abuse of the contract carriage services by the private operators and to provide better transport facilities to the public, and also to prevent concentration of the wealth in the hands of the few and to utilise the resources of the country to subserve the interests of all. To secure the objective of the Act, it was also necessary to prohibit the grant of the contract carriage permits to private indi viduals and to reserve them exclusively to the State Under taking which was done by Sections 14 and 20 of the Act. Unlike the MV Act 1988, which is admittedly enacted by the Parliament under Entry 35 of the Concurrent List, to regu late the operation of the motor vehicles, the object of the Karnataka Act is not only the regulation of the operation of the motor vehicles. Nor is its object merely to prevent the private owners from operating their vehicles with the exclu sive privilege of such operation being reserved in favour of the State or the State Undertaking. For if that were the only object, the same could have been achieved by the Trans port Undertakings of the State following the special provi sions relating to State Transport Undertakings in Chapter IV A of the which was in operation when the Karnataka Act was brought into force. The very fact that instead, the State undertook the exercise of enacting the Karnataka Act shows that the object of the State Legis lature in enacting it was materially different. This is also obvious from the various provisions of the enactment pointed out above. It is for this reason that the contention advanced by the petitioners that the object of the Karnataka Act and that of the MV Act, 1988 is the same and that both of them occupy the same field, cannot be accepted. A comparison of the provisions of the MV Act, 1939 (Old Act) and MV Act, 1988 (New Act) further shows that the latter has merely replaced the former. All that it has done is to update, simplify and rationalize the law on the subject. For this purpose it has made important provisions in the following matters, namely: 635 "(a) rationalisation of certain definitions with additions of certain new definitions of new types of vehicles; (b) Stricter procedures relating to grant of driving li cences and the period of validity thereof; (c) laying down of standards for the components and parts of motor vehicles; (d) standards for anti pollution control devices; (e) provision for issuing fitness certificates or vehicles also by the authorised testing stations; (f) enabling provision for updating the system of registra tion marks; (g) liberalised schemes for grant of stage carriage permits on non nationalised routes, all India Tourist permits and also national permits for goods carriages; (h), (i), (j), (k), (l) . . 6. The special provisions relating to the State Trans port Undertakings which are contained in Chapter VI of the new Act are pari materia with those of Chapter IV A of the old Act, with only this difference that whereas under the old Act it was the State Transport Undertaking which had to prepare a scheme for running and operating the transport service by it in relation to any area or route or portion thereof exclusively, under the new Act such a scheme has to be prepared by the State Government itself. There is no difference in the legal consequences of the schemes under the two enactments. Both envisage the operation of the services by the State Transport Undertaking to the exclusion of the rest, and cancellation of the existing permits and compensation only for the deprivation of the balance of the period of the permit. No acquisition of the vehicles or the paraphernalia connected with such vehicles is envisaged as is the case under the Karnataka Act. It is also not correct to say that the new Act, i.e. MV Act 1988 incorporates a special policy of liberalisation for private sector operations in the transport field. We see no such provision in the Act nor was any pointed out to us. The provisions with regard to the grant of 636 permits under both the old and the new Act are the same. In any case there is no provision for liberalisation of the grant of contract carriage permits in favour of the private individuals or institutions so as to come in conflict with the Karnataka Act. Thus the Karnataka Act and the MV Act, 1988 deal with two different subject matters. As stated earlier the Karna taka Act is enacted by the State Legislature for acquisition of contract carriages under entry 42 of the Concurrent list read with Article 31 of the Constitution to give effect to the provisions of Articles 39(b) and (c) thereof. The MV Act 1988 on the other hand is enacted by the Parliament under entry 35 of the Concurrent list to regulate the operation of the motor vehicles. The objects and the subject matters of the two enactments are materially different. Hence the provisions of Article 254 do not come into play in the present case and hence there is no question of repugnancy between the two legislations. Shri Nariman, the learned counsel for the petitioners however, contended that the provisions of Section 14 and 20 of the Karnataka Act were in direct conflict with the provi sions of Sections 74 and 80(2) of the MV Act 1988. According to him while the Regional Transport Authority (RTA) is enjoined by the provisions of Section 74 read with Section 80(2) of the MV Act 1988, ordinarily not to refuse to grant an application for permit of any kind, the provisions of Section 14 and 20 of the Karnataka Act prohibit any person from applying for, and any officer or authority from enter taining or granting, application for running any contract carriage in the State. Thus there is a direct conflict between the two legislations, and since the MV Act 1988 is a later legislation, operating in the same area, it should be deemed to have impliedly repealed the provisions of Section 14 and 20 of the Karnataka Act, even if the latter Act had received the assent of the President. This is so because of the proviso to sub clause (2) of Article 254 of the Consti tution. This contention proceeds on the footing that the two legislations occupy the same field. As has been pointed out earlier, the objects of the two legislations are materially different. The provisions of Sections 51 and 57 of the old Act further correspond to provisions of Sections 74 and 80 of the new Act. The Karnataka Act had received the assent of the President inspite of the provisions of Sections 51 and 57 of the old Act. The assent of the President, further as stated by the respondents, was taken by way of abundant precaution, although the subject matters of the two Acts were different. The provisions of Sections 14 and 637 20 of the Karnataka Act were incidental and necessary to carry out the main object of the said Act. Without the said provisions, the object of the said Act would have been frustrated. In the case of State of Karnataka & Anr. vs Ranganatha Reddy & Anr. Etc., (supra) while repelling the contention that there was a legislation encroachment by the Karnataka Act because it impinged on the subject of Inter State Trade & Commerce in the Union List as it provided also for acquisition of transport carriages running on inter state routes, this Court in para 32 of the Judgment has observed as follows: " . . It (the Karnataka Act) is not an Act which deals with any Inter State Trade and Commerce. Even assuming for the sake of argument that carriage of passengers from one state to the other is in one sense a part of the InterState Trade and Commerce, the impugned Act is not one which seeks to legislate in regard to the said topic. Primarily and almost wholly it is an Act to provide for the acquisition of contract carriages, the Intra State permits and the other properties situated in the State of Karnataka. In pith and substance it is an Act of that kind. The incidental en croachment on the topic of inter state trade and commerce, even assuming there is some, cannot invalidate the Act. The MV Act 1939 was enacted under Entry 20 of List III of Sched ule Seven of the Government of India Act 1935 corresponding to Entry 35 of List III of the Seventh Schedule to the Constitution. The subject being in the Concurrent List and the Act having received the assent of the President, even the repugnancy, if any between the Act and the Motor Vehi cles Act stands cured and cannot be a ground to invalidate the Act. Entry 42 of List 111 deals with acquisition of property. The State has enacted the Act mainly under this entry . " (emphasis supplied) According to me these observations should put an end to any controversy on the subject, namely, whether the two Legislations are enacted under two different entries in the Concurrent List, and whether they occupy different areas or not. I am also unable to appreciate the contention that the provisions of Sections 14 and 20 of the Karnataka Act are in conflict with the provisions of Sections 74 and 80 of the New MV Act 1988. Section 98 of the MV Act 1988 in terms clearly states (as did Section 68B of the 638 MV Act 1939) that Chapter VI relating to the special provi sions about the State Transport Undertaking and the rules and orders made thereunder, shall have effect notwithstand ing anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. Sections 74 and 80 relating to the grant of the contract carriage permit and the procedure in applying for the grant of such permits respectively, are in Chapter V. This means that when under Chapter VI, a scheme is prepared by the State Govt. entrusting the contract carriage services in relation to any area or route or portion thereof, to a State Transport Undertaking to the exclusion complete or partial of other persons, the provisions of Sections 74 and 80 would have no application, and the private transport operators cannot apply for the grant of contract carriage permits under Section 80 nor can such permits be granted by the Transport Authority. In other words, the MV Act 1988 also makes a provision for nationalisation of routes, and envisages a denial of permits to private operators when routes are so nationalised. Hence it is not correct to say that there is a conflict between the provisions of the two Acts. It was then contended that when there is a repugnancy between the legislations under Article 254 of the Constitu tion, the doctrine of pith and substance does not apply, and even if some of the provisions of the impugned State legis lation are in conflict with some of the provisions of the Central legislation, the conflicting provisions of the State legislation will be invalid. In support of this contention, reliance was placed on two decisions one of the Federal Court in the case of Meghraj & Ors. vs Allahrakhiya & Ors., 29 AIR 1942 FC 27 and the other of the Privy Council report ed in AIR 34 confirming the former. The Federal Court in the above decision has observed that when a provincial Act is objected to as contravening not Section 100 but Section 107(1) the Govt. of India Act 1935 (corresponding to Article 254(1) of the Constitution) the question of the pith and substance of the impugned Act does not arise. In that case, the validity of the Punjab Restitution of Mortgage Lands Act was challenged on the ground that some of its provisions were repugnant to certain provisions of the Contract Act and of the Civil Procedure Code. The Court held that there was no repugnancy between the legislations. But while holding so, the Court made a one sentence observation as follows: "In the judgment of the High Court there is some discussion of the question of the "pith and substance" of the Act; but that question does not 639 arise as objection is taken not under Section 100 of the Constitution act but Sec. " There is no discussion on the point. The arguments, if any advanced on the question are neither reproduced nor dealt with. The observation further was not necessary for the decision in that case, since as is pointed out above, the Court had held that there was no repugnancy between the two statutes since they cov ered two different subject matters. Hence the issue as to whether the impugned Punjab Restitution of Mortgage Lands Act was valid because the pith and substance of the Act covered an area different from the one covered by the Con tract Act and the Civil Procedure Code, did not fall for consideration before the Court. What is more, when the matter went in appeal before the Privy Council, the said point was not even remotely referred to and I find no obser vation in the judgment either confirming, or dissenting from the said observations. This being the case the said observa tions cannot be regarded as more than general in nature. They are not even an obiter dicta much less are they the ratio decidendi of the case Hence the said observations do not have a binding effect. Even otherwise, I am of the view that not to apply the theory of pith and substance when the repugnancy between the two statutes is to be considered under Article 254 of the Constitution, would be illogical when the same doctrine is applied while considering whether there is an encroachment by the Union or the State legislature or a subject exclu sively reserved for the other. When the legislative en croachment is under consideration the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence. When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment though otherwise constitu tionally valid, has lost its validity because the Parliament has made a legislation with a conflicting provision on allegedly the same matter. If it is open to resolve the conflict between two entries in different Lists, viz. the Union and the State List by examining the dominant purpose and therefore the pith and substance of the two legisla tions, there is no reason why the repugnancy between the provisions of the two legislations under different entries in the same List, viz. the Concurrent List should not be resolved by scrutinizing the same by the same touchstone. What is to be ascertained in each case is whether the legis lations are on the same subject matter or not. In both cases the cause of conflict is the apparent identity of the sub ject matter. The tests for resolving it therefore cannot be different. 640 10. I may in this Connection refer to some of the au thorities relied upon by the parties. In Municipal Council Palai vs T.J. Joseph & Ors., ; this Court had to consider the repugnancy between the presolution passed by the appellant Municipal Council in exercise of the powers vested in it under Section 286 and 287 of the Travancore District Municipalities Act 1941, and the provisions of Section 42 of the Travancore Cochin Motor Vehicles Act 1950 which came into force on January 5, 1950, providing for the use of a public bus stand constructed for Stage Carriage buses starting from and returning to the Municipal limits or passing through its limits. The respondent operators challenged the resolution of the Council by contending that the provisions of Sections 286 and 287 of the Municipalities Act stood repealed by implication by virtue of the provisions of Section 42 of Travancore Cochin Motor Vehicles Act, 1950. That Section read as follows: "Government or any authority authorised in this behalf by Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers. ' ' The High Court accepted the contention of the respondents and allowed the Writ Petition. In appeal against the said decision, this Court discussed the law relating to the repugnancy between two legislations by referring to various decided cases foreign as well as Indian. The Court pointed out that in Daw vs The Metropolitan Board of Works, ; after stating the general principles of con struction, the Court there had said that when the legisla tion was found dealing with the same subject matter in two Acts, so far as the later statute derogates from and is inconsistent with the earlier one, the legislature must be held to have intended to deal in the later statute with the same subject matter which was within the ambit of the earli er one. This Court further observed that in that case the English Court was concerned with the statutes which covered more or less the same subject matter and had the same object to serve. That decision further had kept open the question whether the powers conferred upon one authority by an earli er Act, could continue to be exercised by that authority after the enactment of a provision in a subsequent law which 641 conferred wide powers on another authority which would include some of the powers conferred by the earlier statute till the new authority chose to exercise the powers con ferred upon it. Referring to the case of The Great Central Gas Consumers Co. vs Clarke, ; the Court observed that the foundation of that decision was that the later statute was a general one whereas the previous one was a special one and, therefore, the special statute had to give way to the later general statute. Referring to the case of Goodwin vs Phillips, the Court observed that the doctrine of implied repeal was well recognised, and that repeal by implication was a convenient form of legislation and that by using this device, the legislature must be presumed to intend to achieve a consistent body of law. The Court then went on to say that it is undoubtedly true that the legislature can exercise the powers of repeal by implication, but it is an equally well settled principle of law that there is a pre sumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject, the failure to acid a repealing clause indicates that the intent was not to repeal existing legislation. This presumption is rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. Then the Court referred to the following observations from page 631, para 311 of Crawford on Statutory Construction: "There must be what is often called 'such a positive repug nancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together '. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal . . for the intent of the legislature to repeal the old enactment is utterly lacking. " The Court then referred to the observations made in Crosby vs Patch, 18 Calif. 438 quoted by Crawford "Statutory Con struction" p. 633 to point out the reasons of the rule that an implied repeal will take place in the event of clear inconsistency or repugnancy. The said observations are as follows: "As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same sub ject, it is but reasonable to conclude that the Legislature, in 642 passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen vs Lease, 5 Hill 226. It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. 'The reason and philosophy of the rule ', says the author, 'is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or teating the subject in a general manner, and not expressly contradicting the orginal act, shall not be con sidered as intended to affect the more particular or posi tive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all. " The Court then pointed out that for implying a repeal the next thing to be considered is whether the two statutes relate to the same subject matter and have the same purpose. The Court in this connection quoted the following passage at page 634 from Crawford: "And, as we have already suggested, it is essential that the new statute covers the entire subject matter of the old; otherwise there is no indication of the intent of the legis lature to abrogate the old law. Consequently, the later enactment will be construed as a continuation of the old one." (emphasis supplied) These observations are very material for considering the question with which we are concerned in the present case, namely whether the doctrine of pith and substance is ap plicable while examining the repugnancy of the two statutes. The Court then stated that the third question to be considered was whether the new statute purports to replace the old one in its entirety or only partially, and the Court observed that where replacement of an earlier statute is partial, a question like the one, which the Court did not choose to answer in Daw 's case (supra) would arise for decision. The Court also stated that it has to be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to know the existing law did not intend to create any confusion in the law by retaining conflicting provi 643 sions on the statute book and, therefore, when the court applies this doctrine, it does no more than give effect to the intention of the legislature ascertained by it in the usual way, i.e., by examining the scope and the object of the two enactments, the earlier and the later. The Court then referred to its earlier decision in Deep Chand vs State of U.P. & Ors., and pointed out that in that case the following principles were laid down to ascertain whether there is repugnancy or not: 1. Whether there is direct conflict between the two provi sions; 2. Whether the legislature intended to lay down an exhaus tive code in respect of the subject matter replacing the earlier law; 3. Whether the two laws occupy the same field. The Court then referred to Sutherland on Statutory Construc tion (Vol. 13rd Edn. p. 486) on the question of "repeal of special and local statutes by general statutes". The para graph reads as follows: "The enactment of a general law broad enough in its scope and application to cover the field of operation of a special or local statute will generally not repeal a statute which limits its operation to a particular phase of the subject covered by the general law, or to a particular locality within the jurisdictional scope of the general statute. An implied repeal of prior statutes will be restricted to statutes of the same general nature since the legislature is presumed to have known of the existence of prior special or particular legislation, and to have contemplated only a general treatment of the subject matter by the general enactment. Therefore, where the later general statute does not propose an irreconcilable conflict, the prior special statute will be construed as remaining in effect as a quali fication of or exception to the general law. " The Court, however, hastened to add that there is no rule of law to prevent repeal of special and local statute by a later general statute and therefore, where the provisions of the special statute are wholly repugnant to the general statute, it would be possible to infer that the special statute was repealed by the general enactment. However, the Court observed that where it is doubtful whether the special statute 644 was intended to be repealed by the general statute, the Court should try to give effect to both the enactments as far as possible, since the general statute applies to a11 persons and localities within its jurisdiction and scope as distinguished from the special one which in its operation is confined to a particular locality. Where the repealing effect of a statute is doubtful, the statute is to be strictly construed to effectuate its consistent operation with previous legislation as observed by Sutherland on Statutory Construction. The Court also approved of the observations of Suleman J., in Shyamakant Lal vs Rambhajan Singh, that repugnancy must exist in fact, and not depend merely on a possibility. After discussing the principles of repugnancy as above, the Court answered the question that fell for consideration before it in favour of the Municipal Council by observing as follows: "It seems to us however, clear that bearing in mind the fact that the provisions of section 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of sections 286 and 287 of the Travancore District Municipalities Act it cannot be said that section 72 was intended to replace those provisions of the Travancore Distt. Municipalities Act. The proper way of construing the two sets of provisions would be to regard section 72 of the Travancore Cochin Motor Vehicles Act as a provision inconti nuity with sections 286 and 287 of the Travancore District Munic ipalities Act so that it could be availed of by the appro priate authority as and when it chose. In other words the intention of the legislature appears to be to allow the two sets of provisions to co exist because both are enabling ones. Where such is the position, we cannot imply repeal. The result of this undoubtedly would be that a provision which is added subsequently, that is, which represents the latest will of the legislature will have an overriding effect on the earlier provision in the sense that despite the ' fact that some action has been taken by the Municipal Council by resorting to the earlier provision the appropri ate authority may nevertheless take action under section 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under section 287 of the District Municipalities Act. No action under section 72 has so far been taken by the Govern ment and, therefore, the resolutions of the Municipal Coun cil still hold good. Upon this view it is not necessary to consider certain other points raised by learned counsel. " 645 It would thus appear from this decision that the Court held there that the allegedly conflicting provisions of Travancore Cochin Motor Vehicles Act were intended to apply to much wider area than the relevant provisions of the Distt. Municipalities Act and, therefore, it could not be said that the provisions of the Motor Vehicles Act were intended to replace the provisions of Municipalities Act. The Court also held that the proper way of construing the two sets of provisions would be to regard the conflicting provisions of the Motor Vehicles Act as provisions in conti nuity with the relevant provisions of the Municipalities Act so that it could be availed of by the appropriate authority as and when it chose. The Court, therefore, read into the relevant provisions, the intention of the legislature to allow the two sets of provisions to co exist because both were enabling ones, and in such circumstances no repeal could be implied. The Court also rested the said decision by relying on the fact that since no action was taken by the Government under the relevant provisions of the Motor Vehi cles Act, till such time as the action was taken under the said provisions, the Municipal Council could act under the provisions of the Municipalities Act. What is important from our point of view, is the view taken in that case that when repugnancy is alleged between the two statutes, it is necessary to examine whether the two laws occupy the same field, whether the new or the later statute covers the entire subject matter of the old, whether legislature intended to lay down an exhaustive code in respect of the subject matter covered by the earlier law so as to replace it in its entirety and whether the earlier special statute can be construed as remaining in effect as a qualification of or exception to the later general law, since the new statute is enacted knowing fully well the existence of the earlier law and yet it has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislations. In Ratan Lal Adukia vs Union of India, the conflict was between the provisions of Section 80 of the Railways Act 1890 as amended by the Railways (Amendment) Act 1961 on the one hand and the provisions of Section 20 of the Code of Civil Procedure, 1908 and section 18 of the Presi dency Small Causes Courts Act 1882, on the other. Section 80 of the Railways Act before its amendment had 646 provided that a suit for compensation for loss of life or injury to a passenger or for loss, destruction and deterio ration of animals or goods, would lie where the passengers or the animals or goods were booked through over the Rail ways of two or more Railway Administrations, against the Railway Administration from which the passengers and the goods were booked or against the Railway Administration on whose railway the loss injury, destruction or deterioration occurred. By the amendment of 1961, the aforesaid provisions of Section 80 were changed and such a suit was made main tainable (a) if the passenger or the animals or goods were booked from one station to another on the railway of the same Railway Administration, against that Railway Adminis tration. (b) if they were booked through over the railway of two or more Railway Administrations, against the Railway Administration from which they were booked or against the Railway Administration on whose railway the destination station lay or the loss etc. occurred. It was further pro vided that in either of these two cases the suit may be instituted in a court having jurisdiction over the place at which the passenger or the goods were booked or the place of destination or over the place in which the destination station lies or the loss etc. occurred. Thus the changes brought about by the amendment were significant. The old section did not deal with the liability of claims in respect of goods etc. carried by single railway. It only concerned itself with them when they were carried by more than one railway and provided that the suit for loss of such goods could he brought against either the Railway Administration with which the booking was made or against the Railway Administration of the delivery station. The old section further did not speak of the places where such suits could be laid. The choice of the forum was regulated by section 20 of the Code of Civil Procedure or section 18 of the Presi dency Small Causes Courts, as the case may be. The amendment of the section however, made a departure in this respect, namely, it also named the place where such suits could be instituted and it is with this change the decision in ques tion was concerned. Confirming the High Court 's view, the Court held that the new Section 80 prevailed over the provi sions of Section 20 of the Code of Civil Procedure and of Section 18 of the Presidency Small Causes Courts Act. The Court took the view that in view of the fact that the provi sions of the new Section 80 as well as the relevant provi sions of the Code of Civil Procedure and the Presidency Small Causes Courts Act dealt with the same subject matter, namely, the forum for suits, and since the new Section 80 was a special provision relating to special suits against the Railway Administration the special provisions would prevail over the general provisions. The Court also stated that Section 80, looking into its earlier history 647 and the other changes which were brought in it, was a code in itself dealing with the relevant subject matter, and therefore, it repealed the provisions of Section 20 of the Code of Civil Procedure and of Section 18 of the Presidency Small Causes Courts Act by necessary implication. The Court also held that since the provisions of the latter two gener al statutes related to territorial jurisdiction of courts and since the amendment to Section 80 also dealt with the same subject, but in case of only suits for compensation against the Railway, Section 80 being the special statute should be deemed to have supplanted the general statutes like the Code of Civil Procedure and general provisions of section 20 of the Code and Section 18 of the Presidency of Small Causes Courts Act. It will thus be apparent that in that case the provi sions which were in conflict related to the same subject matter unlike in our case. The provisions with regard to application and grant of permits in Sections 14 and 20 have nothing in common with the provisions of Sections 74 and 80 of the . The former provisions are ancillary to giving effect to the acquisition and nationali sation of the road transport within local territorial lim its. The later provisions are general in nature and in furtherence of the object of the Act which is to regulate transport. The subject matters of both the statutes and the object of the two sets of provisions are, therefore, materi ally different. In our case both the statutes can stand together. The legislative intent is clear. Since, further, the Parliament had enacted the later statute knowing fully well the existence of the earlier statute and yet it did not expressly repeal it, it will be presumed that the Parliament felt that there was no need to repeal the said statute. In Ch. Tika Ramji & Ors. vs State of U.P. & Ors. , ; what fell for consideration was the alleged repugnancy between the U.P. Sugarcane (Regulation of Supply and Purchase) Act 1953 and two Notifications issued by the State Government under it on September 27, 1954 and November 9, 1955 on the one hand, and Industries (Development & Regulation) Act 1951 and the and the Sugar Cane Control Order 1955 issued under it on the other. The Court has stated there that no question of repug nancy under Article 254 of the Constitution can arise where Parliamentary legislation and State legislation occupy different fields and deal with separate and distinct matters even though of a cognate and allied nature, and whereas in that case there was no inconsistency in the actual terms of the Act enacted by Parliament and the State Legislature, the test of repugnancy would be whether Parliamentary 648 and the State Legislature in legislating under an Entry in the Concurrent List exercised their powers over the same subject matter or whether the laws enacted by Parliament were intended to be exhaustive so as to cover the entire field. The Court then referred to three tests of inconsistency or repugnancy listed by Nicholas on p. 303 2nd Edn. of his Australian Constitution, namely, (1) there may be inconsist ency in the actual terms of the competing statutes, (2) though there may be no direct conflict, a State law may be inoperative because the Common Wealth Law, or the Award of Common Wealth Court is intended to be a complete exhaustive code, (3) even in the absence of intention, the conflict may arise when both State and Common Wealth Law seek to exercise their powers over the same subject matter. The Court also quoted with approval, observations of the Calcutta High Court in G.P. Stewart vs B.K. Roy Choudhary, AIR 1939 Cal. 628 on the subject which are as follows: "It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says "do" and the other "don 't", there is no true repugnancy according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test: there may well be cases of repugnancy where both laws say "don 't" but in different ways. For example, one law may say, "No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time" and another law may say, "No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time". Here, it is obviously possible to obey both laws, by obeying the more stringent of the two namely the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified". "The principle deducible from the English cases, as from the Canadian cases, seems therefore to be the same as that enunciated by Issacs, J.in the Australian 44 hours case if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a 649 given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law". The Court also approved the observations of Sulaiman, J. in Shyamakant Lal vs Rarnbhajan Singh, (supra) on the subject which are as follows: "When the question is whether a Provincial legisla tion is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repug nant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other; and care should be taken to see whether the two do not really operate in different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a possibility. Their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibitions of the Canadian Act are not and may never be in force: (Attorney General for Ontario vs Attorney General for the Dominion, 11. Referring to the case in hand; the Court then stated that there was no question of any inconsistency in the actual terms of the two Acts. The only questions that arose there were whether the Parliament and the State Legislature sought to exercise their powers over the same subject matter or whether the laws enacted by Parliament were intended to be a complete exhaustive code, or in other words, expressly or impliedly evinced an intention to cover the whole field. The Court then compared the provisions of Industries (Devel opment and Regulation) Act, 1951 as amended by Act XXVI of 1953, the X of 1955 and the Sugar Control order 1955 issued thereunder with the U.P. Act and Order of 1954 issued by the State Government thereunder. By comparing the impugned State Act with the Central Act of 1951 as amended by the Act, 1953, the Court held that the Central Act related to sugar as a finished product while the State legislation covered the field of sugar cane. Thus the fields of operation of the two legislations were different and hence there was no repugnancy between the Central Act and the State Act. It was also further pointed out there that even assuming that sugar cane 650 was an article or class of articles relatable to the sugar industry within the meaning of Section 18(g) of the Central Act, no order was issued by the Central Government in exer cise of the powers vested in it under that Section, and hence no question of repugnancy could ever arise because repugnancy must exist in fact and not depend merely on a possibility. The possibility of an Order under Section 18(g) being issued by the Central Government would not be enough. The existence of such an Order would be the essential pre requisite before any repugnancy could ever arise. As far as the was concerned, the Court pointed out that the Parliament was well within its powers in legislating in regard to sugar cane, and the Central Government was also well within its powers in issuing the Sugar Cane Control Order, 1955 because all that was in exercise of the concurrent powers of legis lation under Entry 33 of List 111. That, however, did not affect the legislative competence of the U.P. State Legisla ture to enact the law in regard to sugar cane and the only question which had to be considered was whether there was any repugnancy between the provisions of the and the State legislation in that behalf. The Court then pointed out that the State Government did not at all provide for the fixation of minimum price for sugar cane. Neither had it provided for the regulation of movement of sugar cane as was done by the Central Government in Clauses (3) and (4) of the Sugar Cane Control Order 1955. Likewise, the provision contained in Section 17 of the State Act in regard to the payment of sugar cane price (as fixed by the Central Govt.) and the recovery thereof as if it was an arrear of land revenue, did not find its place in the Central Government Sugar Cane Control Order 1955. The provi sions in the two legislations were, therefore, mutually exclusive and did not impinge upon each other. By referring to the provisions of Central Government Sugar Cane Control Order 1955 and the U.P. Govt. Sugar Cane (Regulation and Purchase) Order 1954 issued under the respective statutes, the Court pointed out that none of those provisions also overlapped. The Centre was silent with regard to some of the provisions which had been enacted by the State and the State was silent with regard to some of the provisions which had been enacted by the Centre. There was no repugnancy whatever between those provisions, and neither the State Act nor the rules flamed thereunder as well as the State Government 's Order issued under it, trenched upon the field covered by the . The Court therefore held that since there was no repugnancy between the two, the provi sions of Article 254(2) of the Constitution did not come into play. The Court then considered 651 whether the repealing Section 16 of the Essential Commodi ties Act and clause 7 of the Sugar Cane Control Order 1955 had repealed the State Act to the extent mentioned therein. Section 16(1)(b) provides as follows: "16(1) The following laws are hereby repealed (a) x x x x (b) any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity". The contention was that the expression "any other law" covered the impugned State Act which was in force in the State immediately before the commencement of the in so far as it controlled or authorised the control of production, supply and distribution of and trade and commerce in sugar cane (which was), an essential commod ity under the Central Act and Clause (7) of the Sugar Cane Control Order. The contention advanced on behalf of the U.P. State was that under the proviso to Article 254(2), the power to repeal a law passed by the State Legislature was incidental to enacting a law relating to the same matter as is dealt with in the State legislation and that a statute which merely repeals a law passed by the State Legislature without enacting substantive provisions on the subject would not be within the proviso, as it could not have been the intention of the Constitution that on a topic within the concurrent sphere of the legislation, there should be a vaccum. The Court observed that there was considerable force in the said contention and there was much to be said for the view that a repeal simpliciter was not within the scope of the proviso. The Court however, stated that it was not necessary to give its decision on the said point as the petitioner in that case would fail on another ground. The Court then observed that while the proviso to Article 254(2) does confer on Parliament a power to repeal a law passed by the State Legislature, that power is, under the terms of the proviso, subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a "law so made by the State Legislature". The law referred to here is the law mentioned in the body of Article 254(2). It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by 652 Parliament and with the consent of the President. It is only such a law that could be altered, amended or repealed under the proviso. The impugned Act was not a law relating to any matter, which is the subject of an earlier legislation by Parliament. It was a substantive law covering a field not occupied by Parliament, and no question of its containing any provisions inconsistent with a law enacted by Parliament could therefore arise. To such a law, the proviso had no application and Section 16(1)(b) of Act X of 1955 and clause 7(1) of the Sugar Cane Control Order 1955 must, in this view, be held to be invalid. (Sic). The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the two legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legis lation to give effect to its dominant purpose may inciden tally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intend ed to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article. In this view of the matter I am of the view that there is no repugnancy in the provisions of Sections 14 and 20 of the Karnataka Act and Sections 74 and 80 of the MV Act 1988. The petitions must therefore fail and are hereby dismissed with costs. ORDER 15. In view of the decision of the majority the Writ Petitions stand dismissed and the rule in each is discharged with costs. K. RAMASWAMY, J. 1. Despite my deep respect to my learned brother, I express my inability to persuade myself to agree with the result proposed in the draft judgments of my brothers. 653 The notoriety of open and uninhibited misuse of contract carriage as stage carriages in picking up and setting down the passengers en route the route for hire or reward sabo taging the economic, efficient and co ordinated transport service by the respective State Transport Undertakings (for short, "the S.T.U.") had been taken cognizance of by the Karnataka State Legislature. It provided the remedy making the Karnataka Contract Carriages (Acquisition) Act (21 of 1976), for short, "the Acquisition Act" by taking aid of the Entry 42, List III (Concurrent List) of the Seventh Schedule to the Constitution and Articles 31, 39(b) and (c) of the Constitution. It was reserved for consideration and has received the assent of the President on March 11, 1976. It came into force with effect from March 12, 1976. Section 3(g) of the Acquisition Act defines "Contract Carriage" as one covered under section 2(4) of the (4 of 1939), for short, "the Repealed Act" including public serv ice vehicle defined under section 63(6), etc. section 3(a) defines "acquired property" means the vehicles and other immovable and movable property vesting in the State Government under section 4 thereof. The Acquisition Act excluded tourist vehicles, motor cabs, etc. Section 4 declares that on and from the notified date, every contract carriage along with permit or certificate of registration or both, lands, buildings, workshop, etc. shall stand vested in the State Government free from encumbrances. Section 6 provides machinery to determine the amount for the vesting of the acquired proper ty under section 4. Section 14 which is relevant for the purpose of this case read thus: "Fresh permit or renewal of the existing permit barred Except as otherwise provided in this Act (1) No person shall on or after the commencement of this Act apply for any permit or fresh permit or for renewal of an existing permit for the running of any contract carriage in the State; and (2) every application for the grant of a permit or fresh permit or for the renewal of the existing permit and all appeals or revisions arising therefrom relating thereto made or preferred before the commencement of this Act and pending in any Court or with any Officer, Authority or Tribunal constituted under the shall abate. " A reading thereof manifests its unequivocal declaration that on and 654 from the date of vesting viz., March 12, 1976, the statute prohibits any person to apply for, any fresh permit or renewal of an existing permit to run any contract carriage in that State and all applications, appeals or revisions pending before the appropriate authority as on the notified date, statutorily declared to have been abated. Section 20 declares by employing non obstenti clause in sub section (1) that notwithstanding anything in the repealed Act with effect from March 12, 1976 all contract carriage permits granted or renewed in respect of any vehicle other than a vehicle acquired under the Acquisition Act, or belonging to the S.T.U., Karnataka; or referred to in section 24 thereof shall stand canceled. Sub section (2) accords with mandatory language that the S.T.U. "shall be entitled for or renewal of con tract carriage permits to the exclusion of all other per sons" and sub section (3) prohibits by employing a negative language that "no officer or authority shall invite any application or entertain any such application of persons other than the Corporation (S.T.U.) for grant of permit or the running of the contract carriage. " By conjoint operation of sections 14 and 20, the right of any person other than S.T.U., Karnataka to apply for and to obtain any permit or renewal of an existing permit to run a motor vehicle as a contract carriage has been frozen and issued statutory injunction restraining the authority concerned from either inviting or entertaining any application from him for the grant or renewal of contract carriage permit. Monopoly to obtain permit or renewal to run contract carriage was conferred on S.T.U., Karnataka. The constitutional validity of the Acqui sition Act was upheld by this Court in State of Karnataka vs Ranganatha Reddy, 1. The contention that the Acquisition Act fails under Entry 42 of List I of Seventh Schedule to the Constitution, viz., inter state trade and commerce and that therefore the State Legislature lacked competence to make the Acquisition Act was negatived. It was held that in pith and substance, it is an act of acquisition of the contract carriages falling in Entry 42 of List III. It was further held that the effect of operation of sections 14 and 20 is incidental or ancillary to the acquisition. Having received the assent of the President, it is saved by article 254(2) of the Constitution. When an attempt to obtain renew al or fresh special permits to run contract carriages taking aid of section 62(1) or section 63(6) respectively of the repealed Act 4 of 1939 was made on the ground that the Acquisition Act had saved their operation, this Court in Secretary, R.T.A., Bangalore vs P.D. Sharma, ; held that by operation of sections 14 and 20(3), a public service vehicle be it a contract carriage or stage carriage for which temporary permits under sections 62(1) and 63(6) were issued and were in force on January 30, 1976 are not entitled to fresh permits and exclusive monopoly to run contract carriages was given to S.T.U., Karnataka. 655 2. The (Act 59 of 1988), for short, "the Act", came into force with effect from July 1, 1989. Section 2(7) defines 'contract carriage '. Section 2(8) defines 'motor vehicle ' or 'vehicle ' to mean any mechanical ly propelled vehicle adapted for use upon road whether the power of propulsion is transmitted thereto from an external or internal source and includes a chasis to which a body has not been attached and a trailer . . Section 2(34) de fines 'public place ' to mean, a road, street, way or other place whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage car riage. Section 2(35) defines 'public service vehicle ' to mean, any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a . . , contract carriage and stage carriage. Section 2(47) defines 'transport vehicle ' to mean, a public service vehicle . . , or a private service vehicle. Chapter V deals with Control of Transport Vehicles, section 66 mandates an owner of a motor vehicle to obtain permit to run it in accordance with the conditions of a permit thus: "(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passen gers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used." (Emphasis supplied) (The provisos are not necessary for the purpose of this case. Hence omitted) Section 73 requires him to make an application for permit of a contract carriage with particulars specified therein. Section 74 deals with grant of contract carriage permit. Sub section (1) thereof provides that "subject to provisions of sub section (3), a Regional Transport Authority may, on an appli cation made to it under section 73, grant a contract carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit, provided that no such permit shall be granted in respect of any area not specified in the application." Sub section (2) empowers the Regional Transport Authority to impose any one or more conditions enumerated therein to be attached to the permit, the details thereof are redundant. Sub section (3) empowers a State 656 Government, when directed by the Central Government, to limit the number of contract carriages generally or a speci fied type as may be fixed in the notification published in this behalf for their operation on the city routes. The details are also not necessary for the purpose of this case. Under section 80(1), an application for a permit of any kind may be made at any time. Sub section (2) posits that "a Regional Transport Authority shah not ordinarily refuse to grant an application for permit of any kind made at any time under this Act." (Emphasis Supplied). The proviso are omitted as not being relevant. The petitioners have applied under sections 73, 74 and 80 of the Act for grant of contract carriage permits. Placing reliance on sections 14 and 20 of the Acquisi tion Act, the concerned authorities have refused to enter tain their applications. Calling them in question the above writ petitions have been filed under article 32 of the Consti tution. The contention of Sri Nariman, learned senior counsel for the petitioners, is that the object of the Act is to liberalise grant of contract carriages which do not ply on any particular routes. Contract carriage defined under section 2(7) of the Act is a public service vehicle within the meaning of section 2(35) of the Act. Section 66 obligates the owner to obtain permits to run contract carriages. Section 14(1) read with section 80(1) accords the right to the petition ers to apply for, and enjoins the authorities under section 80(2) to consider and to grant permits to run public service vehicles as contract carriages. Section 217(1) repealed all the laws, save such of the laws which are not inconsistent with the provisions of the Act. The operation of sections 14 and 20 of the Acquisition Act is inconsistent with sections 74 and 80 of the Act. Grant of permit to run contract carriage is covered by Entry 35 of List III of the Seventh Schedule. Though, the Acquisition Act was made under Entry 42 of List III and has received the assent of the President, by opera tion of section 74 read with section 80 and section 2 17, the operation of sections 14 and 20 became void under proviso to article 254(2). Sections 14 and 20 also stood repealed by implication. The authorities are, hereby, enjoined to consider the petition ers ' applications for grant of contract carriage permits as per the provisions of the Act and the relevant rules. Mr. Sanghi, learned senior counsel for the S.T.U., Karnataka, contended that the Acquisition Act was made in exercise of the power under Entry 42 of List III of Seventh Schedule to the Constitution. Its constitutional validity was upheld by this Court. It does not occupy the same field as under the Act. The Acquisition Act, having been reserved for consider ation under article 254(2) and has received the assent of the President, it prevails over the Act in the State of Karnata ka. The Acquisition Act is a "special law" in juxtaposition to the general law under the 657 Act. The argument of Mr. Sanghi, though apparently at first blush is alluring and attractive, but on a deeper probe, I find insurmountable difficulties in his way to give accept ance to them. The main questions are whether sections 14 and 20 of the Acquisition Act and sections 73, 74 and 80 of the Act is "in respect of the same matter" and whether the Act evinces its intention to occupy the same field. At the cost of repetition, it may be stated that sections 49 to 51 and the relevant rules under the Repealed Act govern the grant of contract carriage permits and in partic ular the rigour imposed in section 50 thereof is absent in the Act. The Acquisition Act aimed to acquire the contract carriages. They stood vested in the State Government under section 4. Incidental and ancillary thereto, the operation of the existing permits or seeking renewal thereof and the pendency of the proceedings in that regard either by way of an appli cation or in appeal or in revision, having statutorily been declared under section 14(2) to have been abated, the right to obtain permits or special permits afresh or renewal thereof to run contract carriages or stage carriages after expiry of the term, has been frozen to all citizens. Exclusive monopo ly to obtain permits or of the renewal to run them has been given to the S.T.U., Karnataka. On and from March 12, 1976, section 20(3) prohibits the authorities concerned to invite or entertain an application or to grant or renew the permits to a contract carriage or special permit, except to the S.T.U., Karnataka. The non obstenti clause makes clear any cloud of doubts of the applicability of the repealed Act 4 of 1939. After the receipt of the assent of the President, though it is inconsistent with the Repealed Act, its operation is saved by article 254(2) of the Constitution. Sections 73 and 74 read with section 80 of the Act gives to an applicant the right to apply for and to obtain, and obligates the Regional Transport Authority to grant permit to run any public serv ice vehicle as contract carriage throughout the country including the State of Karnataka. Though, section 80(1) gives discretionary power to grant permit but sub section (2) of section 80 manifests that refusal to grant contract carriage permits appears to be an exception for stated grounds and obviously for reasons to be recorded. 4A. Constitutionalism is the alter to test on its anvil the constitutionality of a statute and article 254 is the sole fountain source concerning a State law in the Concurrent List. Article 254(1) deals with inconsistency of law made by Parliament and the law made by the Legislature of a State. Clause (1) adumbrates that the existing law, if it is repug nant with the law made by the Parliament, subject to the provisions of cl. (2), the law made by the Parliament wheth er passed before or after the law made by the Legislature of such state, or, as the case 658 may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of repug nancy, be void. Clause (2) deals with the law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing one "with respect to that matter", then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the Presi dent and has received his assent, prevails in that State; provided that nothing in this clause shall prevent Parlia ment from enacting "at any time any law with respect to the same matter ' ', including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. (Emphasis supplied) 5. In a federal system like ours, there are two streams of law, viz., Union and State. At times, the citizen sub jected to both of laws Central and State will find incon sistency between the obligations imposed on him by those laws or finds variance to avail both laws. In fact, both the Union and State Legislatures are competent to make laws on a subject enumerated in the Concurrent List. We are not con cerned in this case with regard to Union List or State List. it is quite possible that while legislating upon the sub ject, they might end up in handing down inconsistent law and the observance of one law may result is non observance of the other. The citizen will, in such a situation, be at a loss to decide which of the two laws he should follow. To resolve the inconsistency, in other words, to bring about operational uniformity Constitution presses into Service article 254. Its forerunner is section 107 of the Government of India Act, 1935. Both the Parliament and a State Legislature derive their power only under article 254 and article 246(2) to legislate concurrently on the subjects enumerated in the Concurrent List. The enumeration of the subjects in the Concurrent List is only for demarcation of legislative heads or distribution of the subject/subjects over which the Parliament and the State Legislature have competence to make law. However, paramouncy has been accorded to the Union Law, making provision in article 254 firstly as to what would happen in case of repugnancy between the Central and the State law in the concurrent field and secondly resolving such a con flict. The reason is that there are certain matters which cannot be allocated exclusively either to the Parliament or to a State Legislature and for which, though often it is desirable that the State Legislature should make a provision in that regard. Local conditions necessarily vary from State to State and the State Legislature ought to have the power to adopt general legislation to meet the particular circum stances of a State. It is equally necessary that the 659 Parliament should also have plenary jurisdiction to enable it in some cases to secure uniformity in the main principles of law throughout the country or in other matters to guide and encourage the States ' efforts and to provide remedies for mischiefs arising in the State sphere extending or liable to extent beyond the boundaries of a single State. The subjects like the Indian Penal Code, Civil Procedure Code, Criminal Procedure Code, Labour Laws, the Motor Vehi cles Act, etc. occupy this area. The essential condition for the application of article 254(1) is that the existing law or a law made by the Parliament subsequent to State law, must be with respect to one of the matters enumerated in the Concur rent List. In other words, unless it is shown that the repugnancy is between the provisions of a State law and an existing or subsequent law or amended law etc. of the Par liament in respect of the same specified matter, article 254 would be inapplicable, 6. The Court has to examine in each case whether both the legislations or the relevant provisions therein occupy the same field with respect to one of the matters enumerated in the Concurrent List and whether there exists repugnance between the two laws. The emphasis laid by article 254 is "with respect to that matter". Clause (1) of article 254 posits as a rule that in case of repugnancy or inconsistency between the State law and the Union law relating to the same matter in the Concurrent List occupying the same field, the Union law shall prevail and the State law will fail to the extent of the repugnancy or inconsistency whether the Union law is prior or later in point of time to the State law. To this general rule, an exception has been engrafted in cl. (2) thereof, viz., provided the State law is reserved for con sideration of the President and it has received his assent, and then it will prevail in that State notwithstanding its repugnancy or inconsistency with the Union law. This excep tion again is to be read subject to the proviso to cl. (2) thereof, which empowers the Parliament to make law afresh or repeal or amend, modify or vary the repugnant State law which will become void even though it received President 's assent. In short, cl. (1) lays down a general rule; cl. (2) is an exception to cl. (1) and proviso qualifies that excep tion. The premise is that the law made by the Parliament is paramount and Union and State law must relate to the same subject matter in the Concurrent List. It is, thus, made clear that the Parliament can always, whether prior or subsequent to State law, make a law occupied by the State law. An absurd or an incongruous or irreconcilable result would emerge if two inconsistent laws or particular provi sions in a statute, each of equal validity, could coexist and operate in the same territory. 660 7. Repugnancy between the two pieces of legislation, generally speaking, means that conflicting results are produced when both laws are applied to the same set of facts. Repugnancy arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and that it is impossible to obey without disobeying the other. Repugnancy would arise when conflicting results are produced when both the statutes covering the same field are applied to a given set of facts. The Court should, therefore, make every attempt to reconcile the provisions of the apparently conflicting enactments, and would give harmoneous construc tion. There is no repugnancy unless the two Acts or provi sions are wholly incompatible with each other or the two would lead to absurd result. The purpose of determining the inconsistency is to ascertain the intention of the Parlia ment which would be gathered from a consideration of the entire field occupied by the State Legislature. The proper test is whether the effect can be given to the provisions of both the laws or whether both the laws can stand together. There is no repugnaney if these two enactments relate to different fields or different aspects operating in the same subject. In my considered views, article 254 was engrafted in the Constitution by the rounding fathers to obviate such an absurd situation. The reason is obvious that there is no provision in the Constitution that the law made by the Parliament is to be void by reason of its inconsistency with the law made by the Legislature of a State. It may be dif ferent if the State law is only to supplement the law made by the Parliament. If both the laws without trenching upon another 's field or colliding with each other harmoneously operate, the question of repugnancy does not arise. It is also axiomatic that if no law made by Parliament occupies the field, the State Legislature is always free to make law on any subject/subjects in the Concurrent List III of the Seventh Schedule of the Constitution. It is seen that the Acquisition Act was made in exercise of the power under Entry 42 of the Concurrent List and sections 14 and 20 thereof are integral part of the Acquisi tion Act. Undoubtedly, they are consequential or ancillary to section 4 thereof. It had received the assent of the Presi dent. But after the Act was brought on statute, the question emerges whether there exists no repugnancy between sections 14(1) and 20(3) of the Acquisition Act in juxtaposition to sections 66(1), 73, 74 and 80 of the Act. Before embarking upon an enquiry into the results produced by these provisions in the light of above discussion, let us consider the relevant decisions and the ratio laid down therein in this context. 661 Occupied Field: 1n Tika Ramji vs State of U.P., ; Bhag wati, J. speaking for the Constitution Bench, applied three tests propounded by Nicholas in his Australian Constitution, Second Edition, page 303, to find the inconsistency or repugnancy thus. (1) There may be inconsistency in the actual terms of competing statutes; (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete and` exhaustive Code; and (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their power over the same subject matter. (Emphasis sup plied). The repugnancy between the two statutes should exist in fact and not depend merely on a possibility. In that case, the question was whether the U.P. Sugarcane (Regula tion of Supply and Purchase) Act (Act 24 of 1953) is ultra vires of the U.P. Legislature in view of article 246 read with Entry 52 of List I and Item 33 of List III of Seventh Sched ule to the Constitution. In that context, it was held that if both the Central Legislature and the Provincial Legisla tures were entitled to legislature in regard to this subject of production, supply and distribution of sugarcane, there would arise no question of legislative competence of the Provincial Legislature in the matter of having enacted the impugned Act. Repugnancy falls to be considered when the law made by the Parliament and the law made by the Legislature occupy the same field, because if both these pieces of legislation deal with separate and distinct matters, though of a cognate and allied character, repugnancy does not arise. (Emphasis supplied) So far as our Constitution is concerned, repugnancy is dealt with in article 254. On a com parison of various provisions of the State and Central laws, it was held that there was no question of any inconsistency in the actual terms of the Act enacted by the Parliament and the impugned Act and they did not occupy the same field. In A.S. Krishna vs Madras State, ; , the question was whether section 4(2) of the Madras Prohibition Act which lays down a presumptive evidence is repugnant to the Central legislation, viz., Criminal Procedure Code. Dealing with section 107 of the Government of India Act, 1935 which is in pari material to article 254 read with Schedule VII, List II, Items 2 and 31 and List III, Items 2 and 5 of Schedule VII to the Constitution, Venkatarama Ayyar, J. speaking for the Constitution Bench, held that for applying section 107 of the Government of India Act 1935, two conditions must be ful filled the provisions of the provincial law and those of the Central legislation must both be in 662 respect of a matter which is enumerated in the Concurrent List; and they must be repugnant to each other. It is only when both these requirements are satisfied that the provi sional law will to the extent of repugnancy becomes void. Section 4(2) of the Prohibition Act was held to be void. In Prem Nath Kaul vs State of J & K, [1959] 2 Supp. SCR 273, another Constitution Bench held that the essential condition for application of article 254(1) is that the exist ing law must be with respect to one of the matters enumerat ed in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable. In Bar Council of U.P.v. State of U.P.; , the question arose was whether the State Government is empowered to impose stamp duty on the certificate of enrollment under section 22 of the Advocates Act. In considering schedule VII, List I, Entries 77, 78 and 96; List II, Entry 63 and List III, Entries 44 and 26 and the relevant provisions of the Stamp Act and its Schedules, this Court held that the ques tion of repugnancy can only arise in respect of matters where both the parliament and the State Legislature have competence to pass laws. In other words, when the Legisla tive power is located in the Concurrent List, the question of repugnancy arises. In Deep Chand vs State of U.P., [1959] Supp. 2 SCR 8 relied on by Sri Nariman, the Uttar Pradesh legislature made U.P. Transport Service (Development) Act, which had received the assent of the President, introduced a scheme of nationalisation of the transport service. Subse quently, Parliament has amended Act IV of 1939 through Amendment Act 100 of 1956. By reason thereof, it was con tended that the U.P. Amendment Act became void by reason of article 254 of the Constitution. The matter was examined by the Constitution Bench of this Court. Subba Rao, J. (as he then was) per majority, while considering the question, laid three propositions to determine the repugnancy thus: (1) Whether there is direct repugnancy between the two provi sions; (2) Whether Parliament intended to lay down an ex haustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by the Parliament and the law made by the State Legislature occupy the same field. After examining in detail the provi sions of the respective Acts, it was held that after the Central Amendment Act 100 of 1956, it prevailed over the U.P. Act and prospectively became void as the Central Amend ment Act occupied the same field in respect of the same schemes initiated under the U.P. Amendment Act and to that extent the State Act must yield its place to the Central Act. 663 In State of Orissa vs M.A. Tulloch & Co., ; another Constitution Bench of this Court held that the inconsistency may be demonstrated not by a detailed compari son of provisions of the two statutes but by the mere exist ence of the two pieces of legislation. Meeting the argument as to on which Entry in the list the subject falls, it was held thus: "If by reason of the declaration by Parliament the entire subject matter of 'conversation and development of minerals ' has been taken over for being dealt with by Parliament, thus depriving the State of the power which it therefore pos sessed, it would follow that the 'matter ' in the State List is, to the extent of the declaration, (substracted from the scope of the declaration) and ambit of Entry 23 of the State List. There would, therefore after the Central Act 67 of 1957, be no matter in the List to which the fee could be related in order to render it valid. " It was accordingly held that the Orissa Mining Areas Devel opment Fund Act (27 of ' 1952) to be void. Of course, this was in considering the question under Article 246, Entry 54 of List I, and Entry 23 of List 11. In State of Assam vs Horizon Union, ; the facts are that under the , Section 7 A(3)(a) provided that the appropriate Government may by notification constitute an Industrial Tribunal con sisting of one person to be appointed by the appropriate Government. The person shall not be qualified for appoint ment as presiding officer of the Tribunal unless he is or has been a Judge of a High Court or he has held the office of Chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appel late Tribunal) Act, 1950, or of any Tribunal, for a period of not less than two years. Assam Act 8 of 1962 made an amendment to the above procedure and had received the assent of the President, introducing clause (aa) to sub section (3)(a) of Section 7 A thus: "He has worked as a District Judge or as an Additional District Judge or as both for a total period of not less than three years or is qualified for appointment as a Judge of a High Court; provided that the appointment to a Tribunal of any person qualified under this clause shall not be made without consultation with the Assam High Court." 664 In 1964, the Parliament made an amendment viz. Industri al Disputes (Amendment) Act (36 of 1964) amending Section 7 A(3)(a) stating that "he has, for a period of not less than three years, been a District Judge or an Additional District Judge. " The contention raised was that the Assam Act became void by reason of the subsequent Amendment Act of 1964. Both the Parliament and the State Legislature have exercised their power under the Concurrent List of VII Schedule. Another Constitution Bench of this Court has held that the Central Amendment Act 36 of 1964 intended to be an exhaustive code in respect of the subject matter and occu pies the same field. Therefore, the Assam Act 8 of 1962 was repugnant to the Central Amendment Act 36 of 1964 as it does not require the consultation with the High Court for the appointment of an Industrial Tribunal. Accordingly, it was held to be void. In State ofJ & K vs M.S. Farooqi; , the facts were that the respondent was a member of the Indian Police Service governed by the All India Services Act, 1951 and the All India Services (Discipline and Appeal) Rules, 1955. They provided an exhaustive procedure to enquire into the misconduct by a member of the All India Services. The State Legislature, exercising the concurrent power, made Jammu and Kashmir Government Servants ' Prevention of Corrup tion (Commission) Act, 1962. The validity thereof was ques tioned on the anvil of Article 254 of the Constitution. Dealing with the subject, another Constitution Bench, speak ing through Sikri, C.J. held that the Commission Act empow ers to conduct on enquiry into the charges of corruption and misconduct against all Government Servants including the members of All India Services. In addition to the recommen dation for imposition of punishment engrafted in sub section (2) of Section 17 of the Commission Act, it also disquali fies for any public office to a specified period and also recommendation for prosecution for an offence in a Court of law. These details were not dealt with under the Central Act and the Rules. From this conspectus, this Court further held thus: "It seems to us that in so far as the Commission Act deals with the infliction of disciplinary punishments it is repug nant to Discipline and Appeal Rules. Parliament has occupied the field and given clear indication that this was the only manner in which any disciplinary action should be taken against the members of the All India Services 665 Accordingly it was held that the State Act must be read down so as to leave the members of the All India Services outside its purview. Thereby, by implication it was held that by operation of Article 254 of the Constitution the Commission Act is repugnant to the All India Services Act and Rules. In Kerala State Electricity Board vs Indian Aluminium Co., [1976] 1 SCR 552 another Constitution Bench of this Court held that: "Having discussed the question of the legislative field it might be necessary to discuss the question as to what hap pens if it should be held that the matter under considera tion in these cases falls within the concurrent list, that is, Entry 38 in List III as contended in the alternative by some of the respondents. As already mentioned the question will arise only if it should be held that the Kerala State Act falls under Entry 38 as contended by Mr. B. Sen. If the impugned legislation falls under List III then the question of repugnancy of that legislation with the existing law or the law made by Parliament as the case may be, will have to be considered. " In Basu 's Commentary on the Constitution of India (Silver Jubilee Edition), Volume K, at page 144, it is stated that "the repugnancy to be found is the repugnancy in the actual provisions of two laws and not the subject matter of the two laws. The proper test is whether effect can be given to the provisions of both the laws or whether both the laws can stand together." (Emphasis added). It is trite law that the form of the provision does not conclude the matter. It must be the "same matter" under consideration. Operational Incompatibility: 9. Repugnancy could also be angulated from the perspec tive of operational incompatibility as well. The celebrated decision in Clyde Engineering Co. vs Cowburn, popularly known as 44 hour case, is a leading authority on this topic. The facts therein are that a Commonwealth Arbitration award fixed rates of pay and overtime on the basis of 48 hour working week while Forthfour Hours Week Act 1925 (NSW) section 6 purported to deal with the same matter on the basis of 44 hours working week. The respondent employee claimed the State Act rate of pay but was denied on the basis of 48 hours working week. When questioned, it was argued that there was no 666 inconsistency between the award and the State Act because the employer, it was said, could obey both laws by observing the 44 hours working week but on the basis that the pay scale determined by the award applied to the 44 hours work ing week. The High Court of Australia relying on section 109 of Australian Constitution rejected the argument and found that an inconsistency existed, as the State law operated to vary the adjustment of industrial relations established by the Commonwealth award. Knox, C.J. held that two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statute may do more than impose duties; they may for instance confer rights; and one statute is inconsistent with another when it takes away a right conferred by the other even though the right may be one which might be waived or abandoned without disobeying the statute which conferred it. Issacc, J. in his separate but concurrent judgment held: "The vital question would be: was the second Act in its true construction intended to cover the whole ground, and there fore, to supersede the first? If it was intended, then the inconsistency would consist in giving operative effect at all to the first Act; because the second was intended en tirely to exclude it. The suggested test however useful a working guide it may be in some cases prove a test; cannot be recognised as the standard measuring rod of inconsisten cy. If, however, a competent legislature expressly or im pliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legisla ture assumes to enter to any extent upon the same field . If such a position as I have postulated be in fact estab lished the inconsistency is demonstrated not by comparison of detailed provisions but by the existence of the two sets of provisions; where that wholesale inconsistency does not occur but the field in partly open, then it is necessary to enquire further and possibly to examine and contrast partic ular provisions. If one enactment makes or acts upon as lawful that which the other makes unlawful or if one enact ment makes unlawful that which the other makes or acts upon as lawful, the two or to that extent inconsistent. It is plain that it may be quite possible to obey both simply by not doing what is declared by either to be unlawful and yet there is palpably inconsistency. The basic reason is that the 667 Constitution clearly intended that once the Commonwealth settled an interstate dispute, that settlement shall stand and that its terms should be framed by the one hand, the other being necessarily excluded. Forty four hours shall constitute a week 's work. No day 's work to exceed either hours without payment for overtime, etc. " Higgins, J. has held that: "When is a law inconsistent with another law? Etimologically I presume that things are inconsistent when they cannot stand together at the same time and law is inconsistent with another when the command or power or provision in one law conflicts directly with the command, power or other provi sion of another. Where two legislations operate over the same territory and came into collision, it is necessary that one should prevail, but the necessity is confined to actual collision as one legislature says 'do ' and the other says 'do not '. (Emphasis supplied) In that case it was held that there is operational incompat ibility between the Commonwealth award and the State law. The State law was held to be void. In Hume vs Palmer, ; both New South Wales Act and Commonwealth Act authorised making of the Regulations dealing with collisions at sea. In both cases regulations had been made. They were in identical terms except that in relation to the jurisdiction to convict for breaches. The New South Wales regulations prescribed summary prosecution and a maximum penalty of Pound 50 whereas the Commonwealth regulations prescribed summary prosecution on indictment and a maximum penalty Pound 100. It was held that the same facts produced different legal results under the two Acts, the penalty under State law was held displaced. In R.v. Brisbane Licensing Court; , a section of the Commonwealth Electoral Act provided that on a polling day fixed for a federal election, a referandum or vote of the electors of a State or part thereof, should not be taken. A local option poll had been taken on such a day under Queensland legislation. It was held that a direct inconsistency existed, and that the local option poll was, therefore, declared to be invalid. In Colvin vs Bradley Bros. Pvt. Ltd., [1943] 68 an order made pursuant to a section of New South Wales Factories and Shops Act prohibiting the employment of women on a milling machine. An award had been made by the Commonwealth Arbitration Court under the Conciliation and Arbitration Act which permitted the employment of females on work, which included work on a milling machine, unless the work was declared to be unsuitable for women by a Board of Reference. No such declaration had been made by the Board. it was held that the order was inconsistent with the award by virtue of section 109 in that it directly prohibited something which the Commonwealth award permitted. In In Re Ex Parte Maclean, ; at 483. Dixon J. held: "When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and pre scribe what the rule of conduct should be, they make laws which are inconsistent notwithstanding that the rule of conduct is identical, which each prescribes, and section 109 applies. " It was further held that the Federal statute had evinced an intention to cover the subject matter and provide what the law upon it should be. In Wenn vs Attorney General (Victoria), ; the Re establishment and Employment Act dealt with the obligations of employers ' to give preference to ex service men in employment (but included no provision as to the duty to give preference in promotion to ex servicemen already employed). The State Act dealt not only with the same mat ter, but also included a provision requiring employers to give preference in promotion. It was held that Commonwealth Legislation was an exhaustive code allowing no room for the operation of the State legislation relating to matter not covered by the Commonwealth Act. The Victorian Law giving preference in promotion was, therefore, held to have been displaced. In O 'Sullivan vs Noarlunga Meat Co. Ltd., ; the facts are that the South Australian Act prohibited laughter of stock for export without a State licence while the Commonwealth Act prohibited export of meat from stock which had not been slaughtered on premises registered under the regulations thereof. In an evenly divided Court, the opinion of the Chief Justice had prevailed, it was held that the Commonwealth regulations were detailed enough to show that 669 they covered the whole field of 'slaughter for export ' and, therefore, the State licensing requirement did not apply. On further appeal the Judicial Committee in O. Sullivan vs Noarlunga Meat Co. Ltd., at 28 added that "in applying this principle it is important to bear in mind that the relevant field or subject is that covered by the law said to be invalid." In Australian Federal Constitutional Law by Collin Howard, Second Edition (1972). at page 27, it was stated that where both a Commonwealth Law and a State law are in terms applicable to a given set of facts, and they produce conflicting legal results on those facts, the Commonwealth law applies and not the State law. In Blackley vs Devondale Cream (Vie.) Pvt. Ltd., ; , a State wages determination prescribed a minimum rate of pay for certain work which was also covered by a Commonwealth award. The Commonwealth award prescribed a lower minimum rate. It was held that there was a direct inconsistence because on the same facts the two laws produced different entitlements. The award rate, therefore, prevailed over the State 's determina tion. REPEAL BY IMPLICATION: Sub section (1) of section 217 of the Act repeals thus: "The , and any law corresponding to that Act in force in any State immediately before the com mencement of this Act (hereafter in this section referred to as the repeal enactments) are hereby repealed." (The other sub sections are not relevant. Hence omitted. ) (Emphasis supplied) Thereby s.217(1) does not expressly repeal sections 14(1) and 20(3) of the Acquisition Act. In Zaveribhai vs State of Bombay, [1955] 1 SCR 799 relied on by Sri Nariman, the facts were that section 7 of the Essential Supplies (Temporary Powers) Act, 1949 provides penalty for contravention of orders issued under section 3 for a term of three years or with fine or with both. The Bombay Legislature amended the Act, by Act 52 of 1950. Section 2 of the Amendment Act provides that ' notwithstanding anything contained in Essential Supplies (Temporary Powers) Act, 1946, whoever contravenes an order made under Sec. 3 of the Essential Supplies (Temporary Powers) Act, shall be punishable with imprisonment for a term which may extend to seven years but shall not, 670 except for reasons to be recorded in writing, be less than six months and shall also be liable to fine". Thus, the Bombay Act imposes minimum sentence while indicating maximum sentence and obtained the assent of the President. Later, the Central Act was amended in 1948, 1949 and 1950. In 1950 Act, Sec. 7 categorised three groups of offences covering the same field and imposd graded sentences depending on the character of the offence and the nature of the commodity contravened. The Bombay Act was challenged on the ground that it was repugnant and was repealed by implication. Venkatarama Iyer, J. speaking for the Constitution Bench held that repugnancy might result when both the legislations cover the same field. It was further held: "The important thing to consider with reference to this provision is whether the legislation in 'in respect of the same matter. ' If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then article 254(2) will have no application. The principle embodied in section 107(2) and article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State. " It was further held that though there is no express repeal, even then the State law will be void under the proviso if it conflicts with later law with respect to the same matter that may be enacted by the Parliament. The principle on which the rule of implied repeal rests, namely, that if the subject matter of later legislation is identical with that of the earlier, so that they cannot both stand together then the earlier is repealed by the later enactment, will be equally applicable to a question under article 254(2) where the further legislation by Parliament is in respect of the same matter as that of the State law. Accordingly, it was held that Sec. 2 of the Bombay Act, No. 36 of 1947 cannot prevail as against Sec. 7 of the Essential Supplies (Temporary Powers) Act as amended by Act 52 of 1950. The doctrine of repugnancy and implied repeal was again considered by this Court in M. Karunanidhi vs Union of India, ; where the Tamil Nadu Public Men (Criminal Misconduct) Act (2 of 1974) was assailed to be repugnant to the Indian Penal Code and the Prevention of Corruption Act 1947. In considering that question, Fazal Ali, J. speaking for the Constitution Bench held: 671 ". So far as the Concurrent List is concerned, both Par liament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by article 254(1). Where the provisions of the Central Act and a State Act in the Concurrent List are fully inconsistent and are absolute ly irreconciliable, the Central Act will prevail and the State Act will become void in view of the repugnancy. Where, however, a law passed by the State comes into colli sion with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with CI. (2) of article 254. Where a law passed by the State Legislature the entries in the State List entrenches upon any of the entries in the Central List the consitutionality of the law may be upheld by invoking the doctrine on a subject covered by the Concur rent List is inconsistent with and repugnant to a previous law made by the Parliament, then such a law can be protected by obtaining the assent of the President under article 254(2) of the Construction. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amend ing, varying or repealing the law made by the State Legisla ture under the proviso to Article 254. " Dealing with the question of repeal by implication, it was held that there is no repeal by implication unless the inconsistency appears on the face of the two statutes that where two statutes occupy a particular field but there is a room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results and that where there is no inconsistency, a statute occupying the same field seeks to create distinct and separate offence, no question of repugnancy arises and both the statutes continue to operate in the same field. On a comparison of the relevant provisions of the ,impugned Act and the Central Acts, it was not repealed by implication. 672 In T. Barai vs Henry Ah Hoe, ; relied on by. Sri Nariman, the facts are that for an offence under Sec. 16(1)(a) read with Sec. 7 of the , prescribed maximum punishment of six years. But the West Bengal Legislature amended the Central Act with effect from April 29, 1974 by the Prevention of Adulteration of Food, Drugs and Cosmatics (West Bengal) (Amendment) Act, 1973, providing punishment with imprison ment for life and triable by a Court of Sessions. It had received the assent of the President. Later on the Parlia ment amended the Section (Section 16(a) and also introduced Section 16 A in 1976 to the , imposing punishment of three years. Both the enactments have been made in exercise of the concurrent power. In considering the question whether the State Act became void, A.P. Sen J. speaking for three Judges ' Bench has held thus: "There is no doubt or difficulty as to the law applicable. article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State Law with regard to the subjects enumerated in the Concurrent List. and secondly, for resolving such conflict, article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State Law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant ' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall. to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of incon sistency between the two, and no more. in short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will pre vail in that State and override the provisions of the Cen tral Act in their applicability to that State only. The predominance of the State law may, however, be taken away if Parliament legislate under the proviso to Clause (2). The proviso to article 254(2) empowers the Union Parliament to 673 repeal or amend a repugnant State law even though it has become valid by virtue of the President 's assent. Parliament may repeal or amend the repugnant State law, either direct ly, or by itself enacting a law repugnant to the State law with respect to the 'same matter '. Even though the subse quent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repug nancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g. where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed, In all such cases, the law made by Parliament shall prevail over the State law under article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a latter law made by Parliament 'with respect to the same matter ', the West Bengal Amendment Act stood impliedly repealed." In M/s Hoeshst Pharmaceuticals Ltd. vs State of Bihar, ; the Bihar Finance Act, 1981 was made in exercise of the power under Entry 54 of List II of Seventh Schedule to the Constitution amending and repealing the previous Act providing therein to levy tax on sale or pur chase of goods. Section 5(1) imposes levy of surcharge on every dealer whose gross turnover during an year exceeds Rupees Five lakhs, in addition to the tax payable by him at such rate not exceeding 10 per cent of the total amount of tax. Sub section (3) of section (5) prohibits such dealer from col lecting the amount of surcharge from the purchasers. The made under Entry 33 of the Concur rent List III empowering the Government to fix prices of the essential commodities including drugs, medicines, etc. It was contended that by operation of sub section (1) of section 5, the State Act is repugnant and is void. In considering that question, A.P. Sen, J. speaking for three Judges ' Bench held that both the Union and the State Legislature have concur rent powers of legislation with respect to any of the mat ters enumerated in List 111, subject only to the proviso contained in el. (2) of article 254, i.e. provided the State Act do not conflict with those of any Central Act on the subject . The question of repugnancy arises only when both legislatures are competent to legislature in the same field, i.e. when both Union and the State laws relate 674 to a specified subject in List III and occupy the same field. Yet another place it was held that it is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy became void. article 254(1) has no application to the cases of repugnancy due to over lapping found between List II on the one hand and Lists I and II on the other. If such overlapping exists in any particular case, State law will be ultra vires because of the non obstenti clause in article 246(1) read with opening words "Subject to" article 246(3). In such cases, the State law will fail not because of repugnance in the Union List but due to want of legislative competence. Repugnancy arises where there is a direct conflict or collision between the Central Act and the State Legislation and to the extent of repugnancy by necessary implication or by express reference the State legislation stands repealed. It is true, as tightly contended by Mr. Sanghi, that sections 14 and 20 are consequential or ancillary to section 4 of the Acquisition Act 21 of 1976 which had received the assent of the President. Its constitutionality was upheld by seven Judges ' Bench of this Court, when the legislative competence was assailed on the anvil of Entry 42 of List I of the Seventh Schedule, but not on the touchstone of proviso to cl. (2) of article 254 which gives overriding power to the Parliament to make any law or amend, vary, modify or repeal the law made by a State Legislature. Ranganatha Reddy 's ratio, thereby, does not stand an impediment to go into the validity of sections 14 and 20 of the Acquisition Act. The result of the above discussion leads to the following conclusions: (a) The doctrine of repugnancy or inconsistency under article 254 of the Constitution would arise only when the Act or provision/ provisions in an Act made by the Parliament and by a State Legislature on the same matter must relate to the Concurrent List III of Seventh Schedule to the Constitution; must occupy the same field and must be repugnant to each other; (b) In considering repugnance under article 254 the question of legislative competence of a State Legislature does not arise since the Parliament and the Legislature of a State have undoubted power and jurisdiction to make law on a subject, i.e. in respect of that matter. In other words, same matter enumerated in the Concurrent List has occupied the field. (c) If both the pieces of legislation deal with separate and dis 675 tinct matters though of cognate and allied character repug nancy does not arise. (d) It matters little whether the Act/Provision or Provi sions in an Act falls under one or other entry or entries in the Concurrent List. The substance of the "same matter occupying the same field by both the pieces of the legisla tion is material" and not the form. The words "that matter" connotes identity of "the matter" and not their proximity. The circumstances or motive to make the Act/Provision or Provisions in both the pieces of legislation are irrelevant. (e) The repugnancy to be found is the repugnancy of Act/ provision/Provisions of the two laws and not the predoninant object of the subject matter of the two laws. (f) Repugnancy or inconsistency may arise in diverse ways, which are only illustrative and not exhaustive: (i) There may be direct repugnancy between the two provi sions; (ii) Parliament may evince its intention to cover the whole same field by laying down an exhaustive code in respect thereof displacing the State Act, provision or provisions in that Act. The Act of the Parliament may be either earlier or subsequent to the State law; (iii) Inconsistency may be demonstrated, not necessarily by a detailed comparison of the provisions of the two pieces of law but by their very existence in the statutes; (iv) Occupying the same field; operational incompatibility; irreconcilability or actual collision in their operation in the same territory by the Act/provision or provisions of the Act made by the Parliament and their counter parts in a State law are some of the true tests; (v) Intention of the Parliament to occupy the same field held by the State Legislature may not be expressly stated but may be implied which may be gethered by examination of the relevant provisions of the two pieces of the legislation occupying the same field; 676 (vi) If one Act/Provision/Provisions in an Act makes lawful that which the other declares unlawful the two to that extent are inconsistent or repugnant. The possibility of. obeying both the laws by waiving the beneficial part in either set of the provisions is no sure test; (vii) If the Parliament makes law conferring right/obliga tion/ privilege on a citizen/person and enjoins the authori ties to obey the law but if the State law denies the self same rights or privileges negates the obligation or freezes them and injuncts the authorities to invite or entertain an application and to grant the right/privilege conferred by the Union law subject to the condition imposed therein the two provisions run on a collision course and repugnancy between the two pieces of law arises thereby; (viii) Parliament may also repeal the State law either expressly or by necessary implication but Courts would not always favour repeal by implication. Repeal by implication may be found when the State law is repugnant or inconsistent with the Union law in its scheme or operation etc. anti conflicting results would ensue when both the laws are applied to a given same set of facts or cannot stand togeth er or one law says do and other law says do not do. In other words, the Central law declares an act or omission lawful while the State law says them unlawful or prescribes irrec oncilable penalties/punishments of different kind, degree or variation in procedure etc. The inconsistency must appear on the face of the impugned statutes/provision/provisions therein; (ix) If both the pieces of provisions occupying the same field do not deal with the same matter but distinct, though cognate or allied character, there is no repeal by implica tion; (x) The Court should endeavour to give effect to both the pieces of legislation as the Parliament and the legislature of a State are empowered by the Constitution to make laws on any subject or subjects enumerated in the Concurrent List III of Seventh Schedule to the Constitution. Only when it finds the incompatibility or irresconcilability of both Acts/provision or provisions, or the two laws cannot stand together, the Court is entitled to declare the State law to be void or repealed by implication; and (xi) The assent of the President of India under article 254(2) given to a State law/provision, provisions therein accord only opera 677 tional validity though repugnant to the Central law but by subsequent law made by the Parliament or amendment/modifica tion, variation or repeal by an act of Parliament renders the State law void. The previous assent given by the Presi dent does not blow life into a void law. Scope and operation of Rule of Pith and Substance and pre doninant purpose vis a vis Concurrent List. The further question is whether the doctrines of dominant purpose and pith and substance would be applied to the matter covered under the Concurrent List. in my consid ered view, they do not apply. The doctrine of pith and substance primarily concerns in determining the legislative competence. The idea underlying the detailed distribution of legislative powers in three Lists was to ensure that Parlia ment and State Legislatures should keep themselves within the spheres allocated to them in List I and vice versa in List II respectively. However, legislation is a very compli cated matter as it reflects life, which itself is a compli cated one. Hence, it is sometimes inevitable that a law passed by the Parliament may trench upon the domain of the State Legislature and vice versa. Would such incidental encroachment on the territory of the other invalidates the legislation? In examining this question and finding a solu tion, the Courts try to save the legislation from unconsti tutionality by applying the flexible rule of pith and sub stance. It is not that the Courts encourage one legislature to encroach upon the legislative field of another legisla ture but merely recognise the reality that despite the strict demarcation of legislative fields to respective legislatures, it is not always possible to effectuate a legislative purpose without incidental encroachment on another 's field. In such a situation the Courts try to find out the pith and substance of the legislation. If the legis lation is found in its pith and substance, within the legis lative competence of the particular legislature, it is held to be valid, despite incidental encroachment on the legisla tive power of another legislature. Thus, the rule of pith and substance is applied to determine whether the impugned legislation is within that competence under articles 246(1) and 246(3) of the Constitution, and to resolve the conflict of jurisdiction. If the Act in its pith and substance falls in one List it must be deemed not to fall in another List, despite incidental encroachment and its validity should be determined accordingly. The pith and substance rule, there by, solves the problem of overlapping of "any two entries of two different List vis a vis the Act" on the basis of an inquiry into the "true nature and character" of the legisla tion. The Court examines the legislation as a whole and tries 678 to find whether the impugned law is substantially within the competence of the Legislature which enacted it, even if it incidentally trespasses into the legislative field of anoth er Legislature. In a case where the question of validity of an act arises, it may be that the topic underlying the provisions of the Act may in one view of the matter falls within the power of the Centre, and on another view within the power of the States. When this happens, it is necessary to examine the pith and substance of the impugned legisla tion; and to see whether in its pith and substance it fails within one, or the other of the Legislative Lists. As stated earlier the constitutionality of the Impugned Act is not determined by the degrees of invasion into the domain as signed to the other legislature but its pith and substance and its true nature and character to find whether the matter fails within the domain of the enacting legislature. The incidental or ancillary encroachment into forbidden field does not effect the competence of the legislature to make the impugned law. From this scenerio let us peep into few important decisions touching the subject. In Prafulla Kumar vs Bank of Commerce, Khulna, AIR 1947 PC 60 the question was whether the Bengal Moneylenders Act (10 of 1940) is ultra vires by reason of Schedule 7, List II, Items 28 and 38 of the Gov ernment of India Act, 1935, and thereby is void. In consid ering that question, the Judicial Committee held as culled out in Head note (b) thus: "It is not possible to make a clean cut between the powers of the Federal and Provincial Legislatures. They are bound to overlap and where they do the question to be considered is what is the pith and substance of the impugned enactment and in what list is its true nature and character to be found. The extent of invasion by the Provinces into subjects in Federal List is an important matter not because the validity of a Provincial Act can be determined by discrimi nating between degrees of invasion but for determining the pith and substance of the impugned Act. The question is not has it trespassed more or less but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not a Provincial matter but a Federal mat ter. Once that is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true import. No doubt where they come in conflict List I has priority 679 over Lists III and II and List III has priority over List II but in each case one has to consider what the substance of an Act is and whatever its ancillary effect, attribute it to the appropriate list according to its true character" This leading ratio formed foundation in countless cases decided by this Court. In State of Bombay vs F.N. Balsara, [ ; it was held that: "It is well settled that the validity of an Act is not affected if it incidentally trenches on matters outside the authorised field and, therefore, it is necessary to enquire in each case what is the pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it then it cannot be held to be invalid merely because it incidentally encroaches on matters which have been assigned to another Legislature. " In Atiabari Tea Co. Ltd. vs State of Assam, ; Gajendragadkar, J. (as he then was) speaking per majority, has explained the purpose of the rule of pith and substance thus: "The test of pith and substance is generally and more appro priately applied when a dispute arises as to the legislative competence of the legislature, and it has to be resolved by reference to the entries to which the impugned legislation is relateable, when there is a conflict between the two entries in the legislative list, and legislation by refer ence to one entry would be competent but not by reference to other, the doctrine of pith and substance is invoked for the purpose of determining the true nature and character of the legislation in question. " In Meghraj & Ors. vs Allaharakhiya & Ors., AIR 1942 FC 27 relied on by Sri Nariman, the contention raised was that when the matter in the Concurrent List had occupied the flied whether the question of pith and substance of the impugned Act would arise? The Federal Court held that when the Provincial Act is objected to as contravening not Sec. 100 but Sec. 107(1) of the Government of India Act 1935, which is in pari materia to article 254 of the Constitution, that the question of pith and substance of the impugned Act does not arise. In Tika Ramji 's case, the same question had arisen for resolution. It was held that 680 "The pith.and substance argument also cannot be imported here for the simple reason that when both the Centre as well as the State Legislatures were operating in the Concurrent field. there was no question of any trespass upon the exclu sive jurisdiction vested in the Centre under Entry 52 of List I, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State legislature together, there was any repugnancy a contention which will be dealt with hereafter. " I have no hesitation to hold that the doctrine of pith and substance on the predoninant purpose, or true nature and character of the law have no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law. It matters little as to in which entry or entries in the Concurrent List the subject matter falls or in exercise whereof the Act/provision or provisions therein was made. The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in a Concurrent List. The question of incidental or ancillary encroachment or to trench into forbidder field does not arise. The determination of its 'true nature and character ' also is immaterial. Power to legislate whether derived from the con cerned Articles or legislative lists in Seventh Schedule 16. Parliament and the Legislature of any state derive their power from article 246(2) of the Constitution to make laws with respect to any of the matters enumerated in List III of the VIIth Schedule to the Constitution. With a non obstanti clause engrafted therein namely notwithstanding anything in Clause ? the Parliament, and, subject to Clause 1, the Legislature of any State also have power to make laws with respect to any of the matters enumerated in List III. List III of Seventh Schedule enumerates the legislative heads over which the appropriate Legislature can operate. The function of the list is not to confer power on either the Parliament or a State Legislature. Article 254 of the Constitition removes the inconsistency between the law made by the Parliament and by the Legislatures of States. Thus the power to legislate on the Concurrent List is derived by the Parliament and the Legislature of any State from Article 246(2) read with Article 254 only. Paramouncy to the law made by the Parliament is given by Article 254(1) and provi so to Article 254(2). The Parliament derives its exclusive power under Article 246(1) to legislate upon any of the 681 subjects enumerated in List I of the Seventh Schedule in the Constitution. Similarly the Legislature of a State derives its exclusive power from Article 246(3) to make laws on any matters in List II. When the Parliament or the Legislature of a State while making legislation within its exclusive domain, namely, List I or List II respectively if it inci dentally trenches upon the forbidden flied, namely, the field demarcated or distributed to the State Legislature and vice versa by the Legislature into List I the doctrine of Pith and Substance was applied to find the "true purpose and character of the Legislation". In considering the question of the doctrine of Pith and Substance in Subrahmanyam Chet tiar vs Muttuswami Goundan, A.I.R. 1941 F.C. 47 at p. 51 held that it must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal inter pretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee where by the impugned statute is examined to ascertain its "pith and substance", or its "true nature and character", for the purpose of determining whether it is legislation with re spect to matters in this list or in that. In that case the question was whether the Madras Agriculturists Relief Act 4 of 1938, Section 8 thereto is invalid, since the matter is in Schedule VII, List I or List II of the Government of India Act, 1935. The contention was that the negotiable instrument; promissory notes are covered by List I of the Seventh Schedule, therefore, the Act is invalid. In consid ering that question and negativing the contention the above ratio was enunciated. (emphasis supplied) In Governor General in Council vs The Reliegh Investment Co. Ltd., at p. 261 in considering the ques tion whether the Federal Legislature 's power is not limited to cases specified in clauses (a) to (e) of sub section (2) of Section 99 from Entry No. 23 of the List I of the Seventh Schedule; it was held by Spens, C.J. that it would not be right that the Legislature would derive the power to legis late on this topic merely from the reference to it in the List, because the purpose of the Lists was not to create or confer powers, but only to distribute between the Federal and the Provincial Legislatures, the powers which had been conferred by Section 99 and 100. (emphasis added) 682 In Harakchand Ratanchand Banthia vs Union of India, ; at p. 489 the Constitution Bench speaking through Ramaswami, J. dealing with the Gold (Control) Act (45 of 1968) observed thus: "Before construing these entries it is useful to notice some of the well settled rules of interpretation laid down by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appro priate legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate legislatures can operate." (emphasis added) In Union of India vs H.S. Dhillion; , at p. 52 Sikri, C.J. speaking per majority of Seven Judges ' Bench held that it must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative field. The Constitution Bench followed the ratio in Releigh Investment case, etc. (emphasis supplied) 16. Thus I hold that the Parliament and the legislature of a State derive their power to legislate on a subject/subjects in Lists I and List II of Seventh Schedule to the Constitution from article 246(1) and (3) respectively. Both derive their power from article 246(2) to legislate upon a matter in the Concurrent List III subject to article 254 of the Constitution. The respective lists merely demarcate the legislative field or legislative heads. The Parliament and the legislature of a State have concurrent power to legis late upon any subject/subjects in the Concurrent list III of Seventh Schedule to the Constitution. article 254(1) and provi so to article 254(2) give paramouncy to the law made by the Parliament, whether existing or made afresh or amended, modified, added or repealing the law subsequent in point of time to the state law made under article 254(2). The exercise of the power by a state legislature to make impugned law under one entry or other in the concurrent list is not decisive. The concerned entry or entries is not the source of power to make impugned law. Keeping the principles laid hereinbefore at the back of our mind, let us consider the impugned provision. Section 14 read with section 20 of the Acquisition Act (21 of 1976) freezed the right of a citizen to apply for an to obtain permit or special permit to run a contract car 683 riage in terms of the permit and monopoly to run a contract carriage was conferred on the S.T.U., Karnataka. But the Act evinces its intention to liberalise the grant of contract carriage permit by saying in section 80(2) that the Regional Transport Authority "shall not ordinarily refuse to grant the permit. " It also confers the right on an applicant to apply for and authorises and Regional Transport Authority to grant liberally contract carriage permit except in the area covered by section 80(3) and refusal appears to be an exception, that too, obviously for reasons to be recorded. It may be rejected if the permit applied for relate to an approved or notified route. The Act accords the right, while the Acqui sition Act negates and freezes the self same right to obtain a permit and to run a contract carriage and prohibits the authorities to invite or entertain an application and to grant a permit to run contract carriage. the Act and the relevant rules cover the entire field of making an applica tion in the prescribed manner and directs the Regional Transport Authority to grant permit with condition attached thereto to run contract carriages vide sections 66(1), 73, 74 and 80 of the Act. Thus, the existence of two sets of provisions in the Act 59 of 1988 and Acquisition Act 21 of 1976 is sufficient to produce conflicting results in their operation in the same occupied field. The two sets of provisions run on collision course, though an applicant may waive to make an application for a permit. Thereby, there exists the operational incompatibility and irreconcilability of the two sets of provisions. Sections 14(1) and 20(3) of the Acquisi tion Act are repugnant and inconsistent of sections 73, 74 and 80 of the Act. By operation of proviso to article 254(2) of the Constitution, the embargo created by sections 14(1) and 20(3) of the Acquisition Act (21 of 1976) to make or invite an appli cation and injunction issued to Regional Transport Authority prohibiting to grant contract carriage permit to anyone except to S.T.U., Karnataka within the State of Karnataka became void. For the applicability of the principle that special law prevails over the general law, the special law must be a valid law in operation. Voidity of law obliterates it from the statute from its very inception. In view of the finding that sections 14(1) and 20(3) are void the contention that the special law prevails over the general law is without sub stance. In Justiniano Augusto De Peidada Barreto vs Antonia Vicento De Fonseca & Ors., ; section 5(1) of the declared that all laws in force immediately before December 20, 1961 in Goa, Daman and Diu or in part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority. Pursuant to the powers conferred by article 240 of the Constitution, the Presi dent pro 684 mulgated Goa, Daman and Diu (Laws) Regulations from time to time. These regulations were extended with specified modifi cation to Goa, Daman and Diu like Civil Procedure Code, 1908 and the , but the Limitation Act, 1908 was not extended by any regulation made by the President. The Portuguese Civil Code inter alia provides limitation to lay suits which is different from the periods prescribed in . It was contended that the Portuguese Civil Code is void by operation of article 254 of the Constitu tion. While considering this question this Court at page 500 has stated thus: "We are not here concerned with the provisions of cl. For the purpose of the present appeals, we will assume that the Portuguese Civil Code which was continued by Par liament to be in force in Goa, Daman and Diu was a law made by the State, though there may be several objections to so doing . Without doubt the provisions of the Portuguese Civil Code, unless they are saved by section 29(2) of the Limita tion Act, are repugnant to the provisions of the Portuguese Civil Code are saved by section 29(2) then there can be no ques tion of any repugnancy. So the question whether the provi sions of Portuguese Civil Code are void on the ground that they are repugnant to the provisions of the depends on the question whether the Portuguese Civil Code is saved by section 29(2) of the ." After exhaustive consideration of that question it was held by Chinnappa Reddy, J. speaking for a bench of two Judges that the provisions of the Portuguese Civil Code deal with the subject of limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is 'local law ' within the meaning of section 29(2) of the and they have to read into the , as if the schedule to the is amended mutatis mutandis Thus, it is clear that the question of repugnancy in cl. (2)of 'article 245 did not arise in that case. On the other hand, operation of Portuguese Civil Code was saved by section 29(2) of the as a local law. The doctrine of predominant purpose of Acquisition Act (21 of 1976) as discussed by my learned brothers is to achieve the objective of preventing the flagrant and blatant misuse or abuse of the contract carriages as stage carriages by eliminating that class of private pliers from all Karna taka roads I am in complete agreement with it. It is a laudable object to subserve public purpose. But the opera tion of its incidental or ancillary provisions, i.e. articles 14(1) and 20(3) to the 685 primary or predominant purpose is nailed by the altered/situation, viz., making the law under the Act 59 of 1988. It is already held that article 254 applies only to repugnancy arising between an existing or subsequent Union law and State law on any one or more subjects in the Concur rent List III of Seventh Schedule to the Constitution. The inconsistency arising between laws on the other two Lists, i.e. Lists I and II, of Seventh Schedule to the Constitu tion, has been taken care of by the opening non obstenti clause of article 246(1) of the Constitution which gives Su premacy of List I over List II/Laws made by Parliament in its residuary jurisdiction will be governed by the same provision because article 248 is to be read with Entry 97 of List I. Same is the position under article 252 of the Constitu tion. Once Parliament has made a law under that Article on a matter in State List, the Legislatures of those States on whose resolution the law was passed by Parliament or which subsequently adopt it ceases to have a power to make a law relating to that matter, and, therefore, there is no ques tion of retaining any legislative competence to make law on that matter. Same should De the position under article 253 of the Constitution. The position under temporary measures are, therefor dealt with by article 251 that in case of inconsisten cy between the Union and State law, the former shall prevail and the latter will be only 'inoperative ' but not 'null and void '. Under articles 252 and 253, the loss of legislative power of the States is complete and, thereafter, the States can no longer make any law on a subject on which Parliament has made a law and, therefore, their existing laws and any laws that they may venture to make in future will be null and void and for that matter article 254(1) cannot be invoked. But that is not the case with matter enumerated in the Concurrent List. The State Legislature did not surrenderated power or jurisdiction. The Parliament, with a view to lay down general principles makes law or amends the existing law. The State Legislature still may feel that its local conditions may demand amendment or modification of the Central law. Their reserve power is article 254(2). If the Parliament expressly repeals the repugnant law made under article 254(2) different considerations may arise for which no final pronouncement is needed here. It is already found that sections 14(1) and 20(3) of the Acquisition Act (21 of 1976) became void. But after making the Act 59 of 1988, the power of the State Legislature under article 254(2) is not exhausted and is still available to be invoked from time to time Though, there is opposite school of juristic thought, in my considered view the interpretation I have but up will sub serve the animation of the rounding fathers of the Constitu tion; the Constitutional Scheme and purpose envisioned by article 254. Therefore, after the Act has come into force, the State legislature has its reserve power under article 254(2) 686 to make law. But unless it again enacts law and reserves it for consideration and obtains the assent of the President afresh, there is no prohibition for the petitioners to make applications for the grant of contract carriage permits under the Act and consideration and grant or refusal thereof according to law by the concerned Regional Transport Author ity. It is, therefore, made clear that this order does not preclude the Karnataka State Legislature to make afresh the law similar to sections 14(1) and 20(3) of the Acquisition Act with appropriate phraseology and to obtain the assent of the President. The authorities have misconstrued the effect of the Act. Accordingly I hold that section 14(1) to the extent of prohibiting to make fresh application for grant of permits to run the contract carriages other than those acquired under Act 21 of 1976 (Acquisition Act) and the embargo and prohibition created under section 20(3) thereof on the respective Regional Transport Authority in the State of Karnataka to invite/receive the application to consider the grant of permits to such contract carriages according to law, are hereby, declared to be void. The writ petitions are accordingly allowed, but, in the circumstances, without costs. P.S.S. Petitions dismissed.

Constitution of India, Article 254. ' Repugnancy between the Parliamentary Act and the State Act in respect of mat ters, in the Concurrent List, Seventh Schedule When arises Karnataka Contract Carriages (Acquisition) Act, 1976 Whether repugnant to the . Statutory interpretation Doctrine of pith and substance or dominant purpose Scope of Whether applicable to find repugnancy under Article 254 of the Constitution between Parliamentary and State laws in respect of matters in List 111. Seventh Schedule to the Constitution. The Karnataka Contract Carriages (Acquisition) Act, 1976 enacted by the State Legislature by taking aid of Entry 42 List III of the Seventh Schedule and Articles 31 and 39 (b) and (c) of the Constitution was reserved for consideration and received the assent of the President of March 11, 1976. Section 4 of that Act provided for vesting of contract carriages along with the respective permits and/or certifi cates of registration issued under the in the State absolutely free from encumbrances. Sub section (1) of section 14 prohibited applications for fresh permits or renewal of existing permits on or from the date of vesting. Section 14(2) provided for abatement of all applications, appeals or revisions pending before the appro priate authority as on the notified date. Sub section (1) of section 20 provided for cancellation of, notwithstanding anything in the 1939 Act, all contract carriage permits granted or renewed in respect of any vehicle other than a vehicle acquired under the Act or belonging to the State Road Trans port Corporation. Sub section (2) entitled the Corporation to the grant or renewal of contract carriage permits to the exclusion of all other persons, while sub section (3) re strained the authority concerned from ?615 entertaining applications from persons other than the Corpo ration. Section 73 of the (enacted to replace the 1939 Act) lays down the mode of application for a contract carriage permit. Section 74(1) empowers the Regional Transport Authority to grant such permits. Sub section (2) enumerates conditions that could be attached to such permit. Sub section (3) empowers the State Government when directed by the Central Government to limit the number of contract carriages on the city routes. Under section 80(1) such application could be made at any time. Sub section (2) posits that a Regional Transport Authority shall not ordi narily refuse to grant such application. Section 217(1) repealed all the laws which were inconsistent with the provisions of the Act. The petitioners, a group of contract carriage operators who were denied permits that they had applied for under sections 73, 74 and 80 of the in view of the provisions of sections 14 and 20 of the Karnataka Contract Car riages (Acquisition) Act, 1976, filed writ petitions under Article 32 of the Constitution questioning the action of the R.T.A. It was contended that the provisions of sections 14 and 20 of the Karnataka Act were in direct conflict with the provi sions of sections 74 and 80(2) of the M.V. Act, 1988 in as much as while the Regional Transport Authority was enjoined by the said provisions of the 1988 Act ordinarily not to refuse to grant an application for permit of any kind, the said provisions of the Karnataka Act prohibited any person from applying for, and any officer or authority from entertaining or granting application for running any contract carriage in the State; that since the M.V. Act, 1988 was a later legis lation operating in the same area, it should be deemed to have impliedly repealed the provisions of sections 14 and 20 of the Karnataka Act even if the latter Act had received the assent of the President, in view of the proviso to sub clause (2) of Article 254 of the Constitution; that when there is a repugnancy under Article 254 of the Constitution, the doctrine of pith and substance does not apply, and even if some of the provisions of the State Legislation are in conflict with some of the provisions of the Central legisla tion, the conflicting provisions of the State legislation, will be invalid and that, therefore, their applications under sections 74 and 80 were maintainable without reference to the provisions of the Karnataka Act. For the respondents it was contended that the Acquisi tion Act was made in exercise of the power under a different entry and was not on the same subject, therefore, the matter did not come within the ambit of article 254 of the Constitu tion, and that the Acquisition Act having been 616 reserved for consideration under article 254(2) and having received the assent of the President, it prevails over the Parliamentary Act in the State of Karnataka. On the question: Whether there is repugnancy between the provisions of sections 14 and 20 of the Karnataka Contract Car riages (Acquisition) Act, 1976 and sections 74 and 80 of the and whether the doctrine of domi nant purpose and pith and substance is applicable while examining the repugnancy of the two statutes? Per Misra, J. (Concurring with Sawant, J.) 1. There is no direct inconsistency between the Karnata ka Contract Carriages (Acquisition) Act, 1976 and the . [631G H] 2.1 In cl. (1) of article 254 of the Constitution it has been clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Con current List. In the instant case, the State Act was an Act for acquisition and came within Entry 42 of The Concurrent List. The Parliamentary Act on the other hand is a legisla tion coming within Entry 35 of the Concurrent List. There fore, the said two Acts as such do not relate to one common head of legislation enumerated in the Concurrent List. Clause (2) also refers to the law with respect to the same matter. [628F; 629A] 2.2 Repugnancy between two statutes would arise if there is direct conflict between the two provisions and if the law made by Parliament and the law made by the State Legislature occupy the same field. In the instant case, the State Act intended to eliminate private operators from the State in regard to contract carriages acquired under the existing permits, vehicles and ancillary property and with a view to giving effect to a monopoly situation for the State Under taking made provision in section 20. The Parliamentary Act does not purport to make any provision in regard to acquisition of contract carriage permits which formed the dominant theme or the core of the State Act. Nor does it in section 73 and section 74 indicate as to who the applicant shall be while laying down how an application for a contract carriage permit shall be made and how such a permit shall be granted. Section 80 of the Parliamentary Act does contain a liberalised provision in the matter of grant of permits but even then there again the ancillary provision contained in section 20 of the State Act to effectuate acquisition does not directly run counter to the 1988 provision. [630G; 631C] 617 There does not thus appear to be any repugnancy between the two Acts for invoking article 254 of the Constitution. [631D E] Bar Council of Uttar Pradesh vs State of U.P. & Anr. , ; ; Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552; Deep Chand vs State of Uttar Pradesh & Ors., ; ; T. Barai vs Henry Ah Hoe & Anr., ; ; Hoechst Pharmaceuti cals Ltd. & Anr. vs State of Bihar & Ors. , ; ; Zaverbhai Amaidas vs State of Bombay, [1955] 1 SCR 799; M. Karunanidhi vs Union of India, ; and State of Karnataka & Anr. vs Ranganatha Reddy & Anr. ; , referred to. Per Sawant, J: 1. There is no repugnancy in the provisions of sections 14 and 20 of the Karnataka Contract Carriages (Acquisition) Act, 1976 and sections 74 and 80 of the . Hence the provisions of Article 254 of the Constitution do not come into play. [652F; 636C] 2.1 Whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is to find out the dominant intention of the two legislations. If the dominant intention of the two legislations is different, they cover different subject matters. If the subject matters covered by '.he legislation are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation to be on the same subject matter must further cover the entire field covered by the other. [652C D] A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article. [652E] Municipal Council Palai vs T.J. Joseph & Ors., ; ; Tika Ramji & Ors. vs State of U.P. & Ors. , ; and State of Karnataka & Anr. vs Ranga natha Reddy & Anr. ; , , referred to. 618 Ratan Lal Adukia vs Union of India, , distinguished. 2.2 In the instant case, the objects and the subject matters of the two enactments were materially different. The Karnataka Act was enacted by the State Legislature for acquisition of contract carriages under Entry 42 of the Concurrent List read with Article 31 of the Constitution to give effect to the provisions of Articles 39(b) and (c) thereof. The MV Act 1988 on the other hand was enacted by the Parliament under Entry 35 of the Concurrent List to regulate the operation of the motor vehicles. They thus occupy different areas. [636C, B C] 2.3 Unlike the MV Act 1988 which was enacted to regulate the operation of the motor vehicles, the object of the Karnataka Act was, not only the regulation of the operation of the motor vehicles. Nor was its object merely to prevent the private owners from operating their vehicles with the exclusive privilege of such operation being reserved in favour of the State or the State Undertaking. For if that were the only object, the same could have been achieved by the Transport Undertakings of the State following the spe cial provisions relating to State Transport Undertakings in Chapter IV A of the Motor Vehicle Act, 1939 which was in operation when the Karnataka Act was brought into force. The very fact that instead the State undertook the exercise of enacting the Karnataka Act shows that the object of the State Legislature in enacting it was materially different i.e. to nationalise the contract carriage services in the State with a view to provide better transport facilities to the public and also to prevent concentration of wealth in the hands of the few and to utilise the resources of the country to subserve the interests of all. [634D F; B C] 3.1 A comparison of the provisions of the MV Act, 1939 and MV Act, 1988 shows that the latter has merely replaced the former. The special provisions relating to the State Transport Undertakings which are contained in Chapter VI of the MV Act, 1988 are pari materia with those of Chapter IV A of the MV Act, 1939 with only this difference that whereas under the old Act it was the State Transport Undertaking which had to prepare a scheme for running and operating the transport service by it in relation to any area or route or portion thereof exclusively, under the new Act such a scheme has to be prepared by the State Government itself. There is no difference in the legal consequences of the schemes under the two enactments. Both envisage the operation of the services by the State Transport Undertaking to the exclusion of the rest, and cancellation of the existing permits and compensation only for the deprivation of the balance of the period of the permit. No acquisi 619 tion of the vehicles or the paraphernalia connected with such vehicles is envisaged as is the case under the Karnata ka Act. [634G; 635E G] 3.2 Section 98 of the MV Act 1988 in terms clearly states (as did Section 68B of the MV Act 1939) that Chapter VI relating to the special provisions about the State Trans port Undertaking and the rules ' and orders made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. Sections 74 and 80 relating to the grant of the contract carriage permit and the procedure in applying for the grant of such permits respectively, are in Chapter V. This means that when under Chapter VI, a scheme is prepared by the State Govt. entrusting the contract carriage services in relation to any area or route or por tion thereof, to a State Transport Undertaking to the exclu sion complete or partial of other persons, the provisions of sections 74 and 80 would have no application, and the private transport operators cannot apply for the grant of contract carriage permits under section 80 nor can such permits be granted by the Transport Authority. The MV Act 1988 thus also makes a provision for nationalisation of routes, and envisages a denial of permits to private operators when routes are so nationalised. Hence it cannot be said that there was a conflict between the provisions of the Karnataka Act and the M.V. Act, 1988. [637H; 638D] 4. When the legislative encroachment is under considera tion the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence. When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment though otherwise constitutionally valid, has lost its valid ity because the Parliament has made a legislation with a conflicting provision on allegedly the same matter. If it is open to resolve the conflict between two entries in differ ent Lists, viz., the Union and the State List by examining the dominant purpose and therefore the pith and substance of the two legislations, there is no reason why the repugnancy under Article 254 of the Constitution between the provisions of the two legislations under different entries in the same List, viz. the Concurrent List should not be resolved by scrutinizing the same by the same touchstone. What is to be ascertained in each case is whether the legislations are on the same matter or not. In both cases the cause of conflict is the apparent identity of the subject matters. The tests for resolving it therefore cannot be different. [639E H] 620 Meghraj & Ors. vs Allahrakhiya & Ors., AIR 1942 FC 27 distinguished. Per K. Ramaswamy, J. (Dissenting) 1. Section 14(1) of Karnataka Contract Carriages (Acqui sition) Act, 1976 to the extent of prohibiting to make fresh application for grant of permits to run the contract car riages other than those acquired under that Act and the embargo and prohibition created under section 20(3) thereof on the respective Regional Transport Authority in the State of Karnataka to invite/receive the application to consider the grant of permits to such contract carriages according to law, are void. [686C D] 2.1 The Parliament and the legislature of a State derive their exclusive power to legislate on a subject/subjects in List I and List II of Seventh Schedule to the Constitution from article 246(1) and (3) respectively. Both derive their power from article 246(2) to legislate upon a matter in the Concurrent List III subject to article 254 of the Constitution. The entries in the three lists merely demarcate the legisla tive field or legislative heads. Their function is not to confer powers on either the Parliament or the State Legisla ture. [682E D] Subrahmanyam Chettiar vs Muttuswami Goundan., AIR 1941 FC 47; Governor General in Council vs The Reliegh Investment Co. Ltd., ; Harakchand Ratanchand Banthia vs Union of India; , AND Union of India vs H.S. Dhillon; , , referred to. 2.2 Clause (1) of article 254 posits as a rule that in case of repugnancy or inconsistency between the State Law and the Union Law relating to the same matter in the Concurrent List occupying the same field, the Union law shall prevail and the State law will fail to the extent of the repugnancy or inconsistency whether the Union law is prior or later in point of time to the State law. To this general rule, an exception has been engrafted in cl. (2) thereof, viz., provided the State law is reserved for consideration of the President and it has received his assent, and then it will prevail in that State notwithstanding its repugnancy or inconsistency with the Union law. This exception again is to be read subject to the proviso to cl. (2) thereof, which empowers the Parliament to make law afresh or repeal or amend, modify or vary the repugnant State law and it became void even though it received President 's assent. [659D F] 621 2.3 The question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible to obey without disobeying the other, or conflicting results are produced when both the statutes covering the same field are applied to a given set of facts. It matters little whether the provisions fall under one or other entry in the Concurrent List. The substance of the same matter occupying the same field by both the pieces of the legislation is material and not the form. The repugnancy to be found is the repugnancy of the provisions of the two laws and not the predominant object of the subject matter of the two laws. The proper test is whether effect can be given to the provisions of both the laws or whether both the laws can stand together. If both the pieces of legislation deal with separate and distinct matters though of cognate and allied character repugnancy does not arise. [660A B; 675B C; 660C; 674H; 675A] Tika Ramji vs State of U.P., ; ; A.S. Krish na vs Madras State; , ; Prem Nath Kaul vs State of J &K, [1952] 2 Supp. SCR 273; Bar Council of U.P.v. State of U.P.; , ; Deep Chand vs State ofU. P., [1959] Supp. 2 SCR 8; State of Orissa vs M.A. Tulloch & Co., ; ; State of Assam vs Horizon Union, ; ; State ofJ & K vs M.S. Farooqi; , ; Kerala State Electricity Board vs Indian Aluminium Co., [1976] I SCR 552; Basu 's Commentary on the Constitution of India (Silver Jubilee Edition) Volume K 144; Clyde Engineer ing Co. vs Cowburn, ; Hume vs Palmer, ; ; Brisbane Licensing Court; , ; Colvin vs Bradley Bros. Pvt. Ltd., ; ; In Re Ex Parte Maclean, ; ; Wenn vs Attorney General (Victoria), ; ; O ' Sullivan vs Noarlunga Meat Co. Ltd.; , ; O 'Sullivan vs Noarlunga Meat Co. Ltd., and Blackley vs Devon dale Cream (Vic.) Pvt. Ltd.; , , referred to. 2.4 Section 14 read with section 20 of the Acquisition Act freezed the right of a citizen to apply for and to obtain permit or special permit to run a contract carriage in terms of the permit and monopoly to run a contract carriage was conferred on the S.T.U., Karnataka. But the M.V. Act, 1988 evinces its intention to liberalise the grant of contract carriage permit by saying in section 80(2) that the Regional Transport Authority "shall not ordinarily refuse to grant the permit". It also confers the right on an applicant to apply for and authorises the Regional Transport Authority to grant liberally contract carriage permit except in the area covered by section 80(3) and refusal appears to be an exception, that too, obviously for reasons to be recorded. It may be 622 rejected if the permit applied for relate to an approved or notified route. The M.V. Act accords the right, while the Acquisition Act, negates and freezes the self same right to obtain a permit and to run a contract carriage and prohibits the authorities to invite or entertain an application and to grant a permit to run contract carriage. The Act and the relevant rules cover the entire field of making an applica tion in the prescribed manner and directs the Regional Transport Authority to grant permit with condition attached thereto to run contract carriages vide sections 66(1), 73, 74 and 80. Thus the existence of two sets of provisions in the 59 of 1988 and Acquisition Act 21 of 1976 is sufficient to produce conflicting results in their opera tion in the same occupied filed. The two sets of provisions run on collision course, though an applicant may waive to make an application for a permit. Thereby there exists the operational incompatibility and irreconcilability of the two sets of provisions. Sections 14(1) and 20(3) of the Acquisi tion Act are repugnant and inconsistent to sections 73, 74 and 80 of the Act. By operation of proviso to article 254(2) of the Constitution, the embargo created by sections 14(1) and 20(3) of the Acquisition Act to make or invite an application and injuction issued to Regional Transport Authority prohibiting to grant contract carriage permit to anyone except to S.T.U., Karnataka within the State of Karnataka became void. [682H; 683E] 3.1 The Parliament with a view to lay down general prin ciples makes law or amends the existing law. The State Legislature still may feel that its local conditions may demand amendment or modification of the Central Law. Their reserve power is article 254(2). After making the Act 59 of 1988 the power of the State Legislature under article 254(2) is not exhausted and is still available to be invoked from time to time. But unless it again enacts law and reserves it for consideration and obtains the assent of the President afresh, there is no prohibition for the petitioners to make applications for the grant of contract carriage permits under the Act and consideration and grant or refusal thereof according to law by the concerned Regional Transport Author ity. [685E; 686B] 3.2 The Karnataka State Legislature is, therefore, at liberty to make afresh the law similar to sections 14(1) and 20(3) of the Acquisition Act with appropriate phraseology and to obtain the assent of the President. [686B] 4. Parliament may repeal the State law either expressly or by necessary implication but Courts would not always favour repeal by implication. Repeal by implication may be found when the State law is repugnant or inconsistent with the Union law in its scheme or opera:ion. The principle would be equally applicable to a question under 623 Article 254(2) of the Constitution. In the instant case, section 217(1) of the Union law does not expressly repeal sections 14(1) and 20(3) of the State law. They are repugnant with the Union law. [676C D; 670E F; 669F] Zaveribhai vs State of Bombay, [1955] 1 SCR 799; M. Karunanidhi vs Union of India, ; ; T. Barai vs Henry Ah Hoe; , and M/s Hoechst Pharmaceuti cals Ltd. vs State of Bihar, ; , referred to. For the applicability of the principle that special law prevails over the general law, the special law must be valid law in operation. Voidity of law obliterates it from the statute from its very inception. In the instant case, since sections 14(1) and 20(3) are void the said principle is not applicable. [683F] Justiniano Augusto De Peidada Barreto vs Antonia Vicente De Fonseca & Ors., [ ; , distinguished. 6.1 The doctrine of pith and substance or the predomi nant purpose or true nature and character of law is applied to determine whether the impugned legislation is within the legislative competence under articles 246(1) and 246(3) of the Constitution, and to resolve the conflict of jurisdiction. If the Act in its pith and substance fails in one List it must be deemed not to fail in another List, despite inciden tal encroachment and its validity should be determined accordingly. The pith and substance rule, thereby, resolves the problem of overlapping of "any two entries of two dif ferent Lists vis a vis the Act" on the basis of an inquiry into the "true nature and character" of the legislation as a whole and tries to find whether the impugned law is substan tially within the competence of the Legislature which enact ed it, even if it incidentally trespasses into the legisla tive field of another Legislature. [680C; 677F; 678A1 6.2 The doctrine has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law. It matters little as in which entry or en tries in the Concurrent List the subject matter falls or in exercise whereof the Act/provision or provisions therein was made. The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in the Concurrent List. The question of incidental or ancillary encroachment or to trench into forbidden field does not arise. The determination of its 'true nature and character also is immaterial. [680C D] 624 Prafulla Kumar vs Bank of Commerce, Khulna, AIR 1947 PC 60; State of Bombay vs F.N. Balsara; , ; Atiabari Tea Co.Ltd. vs State of Assam, ; and Meghraj & Ors. vs Allaharakhiya & Ors., AIR 1942 FC 27, referred to.

No. 136 of 1971. Appeal by special leave from the judgment and order dated August 6, 1970 of the Madhya Pradesh High Court, Indore Bench in Civil Revision No. 415 of 1969 I. N. Shroff, for the appellant. section V.Gupte, section K. Mehta and K. L. Mehta,for respondent No.1. Vaidialingam, J. Civil Miscellaneous Petition No. 5801 of 1971, is by the first respondent, is an application under sections 17 and 29 of the (hereinafter to be referred as the Act) to pass a judgment and decree according to the Award of the arbitrator dated August 24, 1971 and to grant interest from the date of the decree, on the amount found payable by the appellant. Civil Miscellaneous Petition No. 5802 of 1971, by the State of Madhya Pradesh, the appellant in the Civil Appeal, is an application requesting this Court to decline to take the Award dated August 24, 1971 on its file. Without prejudice to the above prayer, there is a further request made to this Court to set aside or modify the Award in certain respects. The relevant facts leading up to the filing of the two applications may be adverted to The erstwhile State of Madhya Bharat and entered into a contract with M/s. Saith & Skelton ( P.) Ltd., the first respondent, for the supply and erection of Pen, stocks for Gandhi Sagar Power Station, Chambal Hydel works. The acceptance of the contract was by tender No. Project/SE/ 235 2522 F/II/25 dated June 5, 1956. Under the said contract, the first respondent firm was required to supply material for the five penstocks of P.O.R. Jhalwar Road, Railway Station at Rs. 1,570 per M. Ton within the time stipulated, the total quantity being 463.939 M. Tons. The material was to be transported from Jhalwar Road Railway Station to the works site by the consignee, ,,he Madhya Bharat Government, and the work of erection was to commence on the receipt at the work site of running length of 96 ft. for any of the penstocks. Clause 21 of the contract provided for any question or dispute, arising under the conditions of the contract or in connection therewith, to be referred to the arbitrators, one to be nominated by the State and the other by the firm The said clause also provided for the matter being referred to an Umpire to be appointed by the arbitrators in case of disagreement between them. That clause also referred to certain other matters relating to arbitration proceedings. Disputes arose between the appellant and the respondent firm with reference to the performance of the contract. The firm intimated the appellant on December 31, 1959 nominating one Shri T. R. Sharma, as an arbitrator under Cl. 21 of the contract and also called upon the appellant to nominate an arbitrator. The Directorate General of Supplies and Disposals, who were acting as the agent of the Madhya Bharat Government, nominated one Shri G. section Gaitonde, as an arbitrator on behalf of the appellant. But the said arbitrator resigned his appointment and in consequence on April 26, 1960 one Shri R. R. Desai, was nominated as an arbitrator on behalf of the appellant. This nomination was also by the Directorate General of Supplies and Disposals. On September 6, 1960, the two arbitrators appointed one Sri R. C. Soni, as an Umpire. The two arbitrators disagreed in their views resulting in the matter being referred to the Umpire on October 20, 1961. According to the appellant, the appointment of Shri Gaitonde, in the first instance and of Shri R. R. Desai, later, as an arbitrator, by the Directorate General of Supplies and Disposals was without any authority from the appellant. Later on, the Directorate General of Supplies and Disposals again reappointed Shri R. R. Desai as an arbitrator on behalf of the appellant on January 4, 1961. According to the appellant the appointment of Shri R. C. Sone, as Umpire on September 6, 1960 was not valid. Accordingly, the appellant filed in the Court of the Additional District Judge, Mandsaur, Civil Miscellaneous Case No. 16 of 1962 under section 5 of the Act, for setting aside the nominations, as arbitrators of Shri T. R. Sharma and Shri R. R. Desai, as well as the appointment by them of Shri R. C. Soni, as the Umpire. By order dated October 19, 1963, the Addl. District Judge, Mandsaur held that the appointments of Shri R. R. Desai, as an arbitrator and Shri 236 R. C. Soni, as Umpire, were both invalid and not binding on the appellant. The firm filed all appeal before the High Court of Madhya Pradesh against the order of the Addl. District Judge. This appeal was later oil treated as a Revision and numbered as Civil Revision No. 415 of 1969. The High Court, by its order dated August 6, 1970 appointed Shri R. C. Soni as the Sole Arbitrator under section 12(2) of the Act and accordingly modified the order of the Addl. District Judge, Mandsaur. The appellant filed Special Leave Petition No. 2370 of 1970 in this Court for grant of Special Leave to Appeal against the order of the High Court dated August 6, 1970. The firm entered caveat. On January 29, 1971, this Court ranted Special Leave land, by consent of parties, appointed an arbitrator, whose Award is sought to be made a decree of the Court by the respondent in its application C.M.P. No. 5801 of 1971 and is sought to be set aside by the appellant by C.M.P. No. 5802 of 1971. As the terms of the order passed by this Court are material, it is reproduced below : Special Leave is granted. The appeal is allowed The appointment of Shri R. C. Soni as the sole arbitrator is set aside by consent of the parties. Mr. V. section Desai, Senior Advocate, is appointed Arbitrator by consent of the parties to go into all the questions in this matter and make his awar. The remuneration for the arbitrator would be Rs. 5,000, which will be shared by both the parties equally. The arbitrator will make his award within three months from today. The parties will be at liberty 1 to mention for extension of time, for making the award. G. K. Mitter J, January 29, 1971. A. N. Ray J." On February 1, 1971 this Court gave directions in the appeal,, in the presence of the counsel for both parties, that the records of the arbitration be called for forthwith and sent to the sole arbitrator Mr. V. section Desai, appointed as per order dated January 29, 1971. Again on April 30, 1971, this Court,, in the presence of the counsel for both the parties, extended the time for making the Award by four months and also permitted the arbitrator to hold the arbi tration proceedings at Bombay. The arbitrator gave his Award on August 24, 1971 and filed the same in this Court, the next day. He also crave notice to the parties of the Making and signing of 237 the Award. A signed copy of the Award was also sent to both the parties. The operative part of the Award is as follows : (1) The opponents, the State of Madhya Pradesh will pay to the claimants a sum of Rs. 1,79,653.18 p. for the balance payable to them in respect of the price of supply and erection of the 5 penstocks. (2) The State will also pay interest on the said amount at 9% per annum simple interest from 7th June, 1958 to the date of decree. The State will also refund to t,he claimants a sum of Rs. 15,414,19 p. which they have recovered from the claimants as excess railway freight. V. section Desai, Sole Arbitrator. " In C.M.P. No. 5801 of 1971, the firm prays for passing a judgment and decree, according to the Award and also prays for grant of interest from the date of decree at the rate of 9% per annum. On the other hand, the appellant State, in its application C.M.P. No. 5802 of 1971 prays for an order declining to take the Award on its file or in any event to set aside or modify the award in respect of interest granted prior to August 24, 1971 as well as the direction regarding the refund by the appellant of the sum of Rs. 15,414.19 P. The Award is also sought to be modified on the ground that the award of interest at 9% is very excessive. The question of pronouncing judgment according to the Award, as provided under section 17 of the Act and which is the prayer in C.M.P. No. 5801 of 1971 will arise only if the prayer to set aside the Award made in C.M.P. No. 5802 of 1971, by the State, is rejected. Therefore, we will proceed to consider the contentions raised by Mr. 1. N. Shroff, learned counsel for the appellant, in support of the application C.M.P. No. 5802 of 1971. Mr. Shroff has raised the following four contentions: (1) The arbitrator had no power to suo motu file his Award, as he has done in this case, and as such no action can be taken on such an Award; (2) This Court is not the Court as contemplated by section 14(2) read with section 2(c) of the Act. Hence the filing of the Award in ' this Court is illegal and ineffective in law; (3) The arbitrator had no jurisdiction to award interest from a period anterior to the date of the award or reference; and (4) The Arbitrator has committed a manifest error in directing the refund of Rs. 15,414.19 P. when this amount has already been taken into account in arriving at the figure of Rs. 1,79,653.18 P. 238 We will now proceed to deal with these contentions scriatim. With regard to the first contention, which relates to the validity of the filing of the Award in this Court suo motu, reliance is placed by Mr. Shroff on section 14(2) of the Act. It is the contention of the counsel that under this section an arbitrator can cause an award to be filed in court only under two circumstances : (a) when a request to do so is made by any party to the ' arbitration agreement or any person claiming under such party; and (b) when the arbitrator is directed by the Court to file the award. In this case, it is pointed out,, that no such request was made by any of the parties to the arbitration agreement or any person claiming under such party to the arbitrator to file the Award. It is pointed out that there was no direction by this Court to the arbitrator to file the Award. Hence it is urged that the filing of the Award suo motu is illegal, as being contrary to the terms of section 14(2) of the Act. Mr. section V. Gupte, learned counsel for the respondent firm, referred us to section 38 of the Act and pointed out that the scheme of the Act clearly shows that the Award has to be filed in the Court by the arbitrator either suo motu or on request made by the parties to the arbitration agreement or any person claiming under such party or on being directed by the Court. The counsel pointed out, there is no prohibition in section 14(2) of the Act, against the arbitrator filing the Award in Court suo motu. The question specifically arose before the Nagpur High Court in Narayan Bhawu vs Dewajibhawu(1). The High Court held that there is nothing in section 14(2) of the Act, which precludes the arbitrator from filing the Award suo motu and it is not correct to say that the Award should be filed only if the parties make a request to the arbitrator to file the award or make an application to the Court for that purpose. We are in agreement with this view of the law, especially when there is no prohibition in the Act, particularly in section 14(2) against the arbitrator filing suo motu his Award in Court. Mr. Shroff referred us to the decision in Parasramka Com mercial Company vs Union of India(2). From the facts stated in the said decision, it is seen that the arbitrator made his Award and signed the same on April, 26, 1950. The arbitrator without sending any notice of the making and signing of the Award, sent a copy of the signed Award to the parties. The appellant therein acknowledged receipt of the said signed copy of the Award by his letters dated 5th and 16th May, 1950; but he filed an application on March 30, 1951 in the Subordinate Judge 's Court for passing a decree in terms of the Award. An objection was raised by the (1) A I R (2) ; 239 opponent that the application was out of time under article 178 of the Indian Limitation Act, 1908, as not having been filed within 90 days of the date of service of the notice of the making of the Award. It is also seen that the arbitrator on July 3, 1951 filed the original Award before the Court suo motu. The Subordinate Judge rejected the application filed on March 30, 1951 as barred by time. That order was confirmed by the High Court. This Court, after a consideration of section 14(1) of the Act held that the serving, by the arbitrator on the appellant before this Court of a signed copy of the Award amounted to giving him notice in writing of the making of the Award. This Court further upheld, as correct, the view of the Subordinate Judge and the High Court that the application filed by the appellant, beyond the period prescribed under article 178 of the Indian Limitation Act, 1908, was barred. This Court did not express any view regarding the action taken by the arbitrator in filing suo motu the Award and left open the question as follows : ". . But we make it clear that the other part of the case, namely what is to happen to the award sent by the Arbitrator himself to the court has yet to be determined and what we say here will not affect the determination. of that question. Obviously enough that matter arises under the second sub section of section 14 and will have to be considered quite apart from the application made by the company to have the award made into rule of Court. " Again the question whether a plea of limitation can be raised with respect to the suo matu filing of the award by the arbitrator was left open as. follows : ". As to whether, similar objections can be raised in answer to the award filed at the instance of the arbitrator is a question which we cannot go into the present appeal and no expression of opinion must be attributed to us on that point." Therefore, it is clear from what is stated above that in the said decision this Court had no occasion to consider whether an award can be filed suo motu by an arbitrator nor the further question whether such filing should be within the period of limitation provided under the relevant provisions of the Limitation Act. In the case before us the period of limitation is dealt with under Entry 119 of the Schedule to the . As the arbitrator in this case made his Award on August 24, 1971 and filed the same the next day, the question of limitation, if any, does not at all arise. We do not express any opinion whether the period of limitation will apply when the arbitrator files his award Suo 887Sup. CI/72 240 motu. As the filing of the Award by the Arbitrator suo motu is legal, the first contention of Mr. Shroff has to be rejected. The second contention of Mr. Shroff is that this Court is not "Court" as &fined under section 2(c) of the Act, where the Award could be filed. Section 2 (c) of the Act is as follows : "2. In this Act, unless there is anything repugnant in the subject or context, (c) "Court" means a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court." According to Mr. Shroff the Award should have been filed, not in this Court, but in the Court of the Addl. District Judge, Mandsaur, as that is the Court which will have jurisdiction to entertain the suit regarding the subject matter of the reference. We are not inclined to accept this contention of Mr. Shroff. It should be noted that the opening words of section 2 are "In this Act, unless there is anything repugnant in the subject or context. Therefore the expression "Court ' will have to be understood as defined in section 2(c) of the Act, only if there is nothing repugnant in the subject or context. It is in that light that the expression "Court" occurrmg in section, 14(2) of the Act will have to be understood and interpreted. It was this Court that appointed Shri V. section Desai on January 29, 1971, by consent of parties, on an arbitrator and to make his Award. It will be seen that no further directions were given in the said order which will indicate that this Court had not divested itself of its jurisdiction to deal with the Award or matters arising out of the Award. In fact the indications are to the contrary. The direction in the order dated January 29, 1971 is that the arbitrator is "to make his Award". Surely the law contemplates further steps to be taken after the Award has been made, and quite naturally the forum for taking the further action is only this Court. There was also direction to the effect that the parties are at liberty to apply for extension of time for making the Award. , In the absence of anv other court having been invested with such jurisdiction by the order, the only concluonsion that is possible is that such a request must be made only to the court which passed that order, namely, this Court. That this Court retained complete control over the arbitration proceedings is made clear by its orders dated February 1, 1971 and April 30, 1971. On the former date, after hearing counsel for both the parties, this Court gave direction that the record of 241 the arbitration proceedings be called for and delivered to the Sole Arbitrator Mr. V. section Desai. On the latter date, again, after hearing the counsel, this Court extended the time for making the Award by four months and further permitted the arbitrator to hold the arbitration proceedings at Bombay. The nature of the order passed on January 29, 1971 and the subsequent proceedings, referred to above, clearly show that this Court retained full control over the arbitration proceedings. Mr. Shroff referred us to the fact that in the order dated January 29, 1971, it is clearly stated "The appeal is allowed". According to him, when the appeal has come to an end finally, this Court had lost all jurisdiction regarding the arbitration proceedings and therefore the filing of the Award should be only in the Court as defined in section 2(c) of the Act. Here again, we are not inclined to accept the contention of Mr. Shroff. That the appeal was allowed, is no doubt correct. But the appeal was allowed by setting aside the order of the High Court and this Court in turn appointed Mr. V. section Desai as the Sole Arbitrator. All other directions contained in the order dated January 29, 1971 and the further proceedings, as pointed out earlier, indicate the retention of full control by this Court over the arbitration proceedings. In Ct. A. Ct. Nachiappa Chettiar and others vs Cf. A. Cf. Subramaniam Chettiar(1), the question arose whether the trial eourt had jurisdiction to refer the subject matter of a suit to an arbitrator when the decree passed in the suit was pending appeal before the High Court. Based upon section 21, it was urged before this Court that the reference made by the trial court, when the appeal was pending, and the award made in consequence of such reference, were both invalid as the trial court was mot competent to make the order of reference. This Court rejected the said contention and after a reference to sections 2(c) and 21 of the Act held that the expression "Court" occurring in section 21 includes also the Appellate Court, proceedings before which are a continuance of the suit. It was further held that the word "suit" in section 21 includes also appellate proceedings. In our opinion, applying the analogy of the above decision, the expression "Court" occurring in section 14 (2) of the Act will have to be understood,in the context in which it occurs. So understood, it follows that this Court is the Court under section 14(2) where the arbitration Award could be validly field. The decision in Union of India vs Surjeet Singh Atwal(2) relied on by Mr. Shroff, dealt with a different aspect and therefore, it is not necessary for us to refer to the same. The above reasoning leads us to the conclusion that the filing of the Award in this Court by the arbitrator was valid and legal. The second contention of Mr. Shroff will stand rejected. (1) ; (2) 242 The third contention of Mr. Shroff is that the arbitrator had no jurisdiction to award interest from a period anterior to the date of award or reference. Before we deal with this contention, it is necessary to refer to the findings of the arbit rator in his Award. Issues Nos. 6, 7 and 19 frame by the arbitrator and which are relevant on this aspect are as follows: "6 (a) Was the claimant entitled to the payment for supply as well as for erection on the total weight of 463.939 M. tons inclusive of electrodes ? 6 (b) If not, what are the weights on which the price of supply and the erection charges are to be calculated. What is due to the claimant from the respondent in respect of the supply and erection of the penstocks ? 19. Are any of the parties entitled to interest and/ or any other relief. " On issue No. 6(a) the arbitrator found that the firm was entitled to the same weight both for the calculation of price as well as for the price for erection and the said weight was 463.939 M. Tons inclusive of electrodes. In view of the above finding on issue No. 6(a), the arbitrator held that issue No. 6(b) does not survive. On issue No. 7 he found that for the price of supply and erection of 463.939 M. Tons at the rate specified in contract, the total price due to the firm comes to Rs. 12,15,520.18P. It was admitted before the arbitrator that the firm had been paid by the State of sum of Rs. 10,35,867/. In view of this admission the arbitrator found that the balance payable to the firm towards the price for supply and erection is, Rs. 1,79,653.18 P. On issue No. 19, the arbitrator found that the firm is entitled to interest at 9% per annum on the balance of Rs. 1,79,653.18 P. from June 7, 1958, the date on which the final inspection of the, penstock took place. The interest was to be paid till the date of the decree. It is on the basis of the above findings that the arbitrator made the Award, the operative part of which has already been extracted in the earlier part of the judgment. The direction regarding the payment of Rs. 1,79,653.18 P. is not challenged by the State. It is only the direction regarding the period from which interest is payable, that is under challenge. The arbitrator has made the interest payable from June 7, 243 1958, on the ground that it was the date on which final inspection took place and when the amount become payable to the. respondent. Mr. Shroff referred us to a decision of the Judicial Com mittee and to certain decisions of this Court to the effect that section 34 of the Code of Civil Procedure will not apply to the proceedings before an arbitrator, as he is not a Court and that interest cannot be awarded by way of damages. He further referred to those decisions in support of his contention that in the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest on an amount for a period before the institution of the suit, interest anterior to the date of the suit cannot be allowed. The decisions referred to by Mr. Shroff are Bengal Nagpur Raliway Company Limited vs Ruttanji Ramji and others(1),, Seth Thawardas Pherumal vs The Union of India(2), Mahabir Prashad Rungta vs Durga Datt(3), Union of India vs A. L. Rallia Ram(4), Vithal Das vs Rupchand and others(5) and Union of India vs Bungo Steel ' Furniture Pvt. Ltd. (6). It is no doubt true that for awarding interest under the Interest Act, 1939, or under section 34 of the. Code of Civil Procedure, certain circumstances must exist. But one of the principles laid down is that interest prior to the institution of a suit can be awarded if there is any provision of a suit can be awarded if there is any provision of law to justify the award of such interest. In the cases, referred to above, it is seen that there was neither any agreement pleaded for payment of interest; nor was any provision of law entitling the party to recover interest prior to the period of the suit or arbitration proceedings, referred to or relied upon. Under such circumstances it was held that the arbitrator or a court had no power to award interest prior to the date of the Award. In Union of India vs Bungo Steel Furniture Pvt. Ltd. 17)this Court recognised the power of an arbitrator to award interest on the amount of the award from the date of the award till the date of the decree. According to Mr. Shroff, the power of the arbitrator to award interest is only from the date of the award and not for any period anterior to that date. In Firm Madanlal Roshanlal Mahajan vs Hukamchand Mills Ltd. Indore(7), the power of the arbitrator, to whom the subject matter of a suit had been referred for arbitration, to award pendente life interest was considered by this Court. It was held in (1) L.R. 65 I.A. 66. (2) (3) ; (4) ; (5) [1966] Supp. S.C.R. 164. (6) ; (7) ; 244 the said decision that all the disputes in the suit were referred to the arbitrator for his decision. One of the disputes, so referred, was whether the respondent therein was entitled to pendente lite interest. h was held that though in terms, section 34 C.P.C. does not apply to the arbitration, it was an implied term of the reference in the suit that the arbitrator was to decide the dispute, according to law, to grant such relief with regard to pendente lite interest as the Court itself could give, if it decided the dispute. It was further held that such a power of the arbitrator was not fettered either by arbitration agreement or by the Act. The decision in Seth Thawardas Pherumal vs The Union of India(1) distinguished on the ground that the said decision is silent on the question whether an arbitrator can award interest during the pendency of the arbitration proceedings if all the disputes in the suit including the claim for interest were referred for arbition. From the decision in Firm Madanlal Roshanlal Mahajan vs Hukamchand Mills Ltd. Indore(2), it is clear that if all the disputes are referred for arbitration, the arbitrator has power to award interest pendente lite, i.e. during the, pendency of the arbitration proceedings. In the case before there is no controvery that all the disputes including a claim for payment of the amount with interest was referred to the arbitrator. The arbitrator, as pointed out earlier, found that the firm was entitled to the Payment as price in the sum of Rs. 1,79,653.18 P. The arbitrator has further found that this amount became payable as balance price for the goods supplied by the firm on June 7, 1958, on which date the final inspection took place. If that is so, section 61 of the Sat , of Goods Act, 1930 squarely applies and it saves the right of the seller (in this case the firm) to recover interest, where by law interest is recoverable. Sub section (2) of section 61, which is material is as follows : "61 (2) In the absence of a contract to the contrary the Court may award interest at such rate as it thinks fit on the amount of the 'Price , (a) to the seller in a suit by him for the amount of the price from the date of the tender of the or from the date on which the price was payable. (b) to the buyer in a suit by him for the refund of the price in a case of a breach of the contract on the part of the seller from the date on which the payment was made." (1) (2) ; 245 in the case before us, admittedly the contract does not pro vide that no interest is payable on the amount that may be found due to any one of them. if so, it follows that the seller, namely, the firm is entitled to claim interest from the date on which the price became due and payable. The finding of the arbitrator in this case is that the price became payable on June 7, 1958. As held by this Court in Union of India vs A. L. Rallia Ram(1), which related to an arbitration proceeding, under sub section (2) of section 61, in the absence of a contract to the contrary, the seller is eligible to be awarded interest on the amount of the price for the goods sold. On this principle it follows that the award of interest from June 7, 1958 is justified. If the contention of Mr. Shroff that under no circumstances anarbitrator can award interest prior to the date of the Award, or prior to the date of reference, is accepted, then the position will be very anomalous. As an illustration, we may point out that there may be cases where the only question that is referred to the arbitrator is whether any of the parties is entitled to claim interest on the amount due to him from a date which may be long anterior to the date of reference. When such a question is referred to the arbitrator, naturally he has to decide whether the claim for award of interest from the date referred to by the parties is acceptable or not. If the arbitrator accepts that claim, he will be awarding interest from the date which will be long prior even to the date of reference. Therefore, the question ultimately will be whether the dispute referred to the arbitrator included the claim for interest from any particular period or whether the party is entitled by contract or usage or by a provision of law for interest from a particular date. Mr. Shroff further contended that the award of interest at 9% per annum is exorbitant. The short answer for negativing this contention is that it is seen from the claim statement filed by both the appellant and the respondent firm that each of them claimed for payment of the amount, due to them with interest at 12% per annum under section 61 of the . Therefore, it follows that the rate of interest awarded is not excessive. As we have already held that the arbitrator has got power in this case to award interest from June 7, 1958 at the rate specified by him, the third contention of Mr. Shroff will have to be rejected. The last contention of Mr. Shroff relates to the direction regarding the refund of Rs. 15,414.19 P. The contention is that this amount has already been taken into account by the arbitrator when he directed the payment of Rs. 1,79,653.18 P. Mr. Shroff (1) ; 246 was not able to satisfy us that the amount, directed to be paid as refund, has been already taken into account in the amount fixed as the balance price payable by the State. Therefore, this contention also will have to be rejected . Now that we have rejected all the contentions of Mr. Shroff raised in C.M.P. No. 5802 of 1971, it follows that the prayer asked for,therein cannot be granted. Now coming to C.M.P. No. 5801 of 1971, filed by the firm, that application is accepted and a judgment and decree are passed on the basis of the Award as against the State is favour of the respondent firm. The appellant State will pay to the respondent firm a sum of Rs. 1,79,653.18 P. with 9% per annum simple interest from June 7, 1958, till the date of the decree and thereafter at 6% till the date of payment. The appellant State will also refund to the respondent firm a sum of Rs. 15,414.19 P. which they have recovered from them as excess railway freight. In the result, C.M.P. No. 5802 of 1971 will stand dismissed with costs. C.M.P. No. 5801 of 1971 is allowed with costs. A. decree as stated above will issue.

Disputes having arisen between the appellant and the respondent with reference to the performance of a contract which provided for arbitration, steps were taken to appoint arbitrators and an umpire. The appellant filed a petition in the District Judge 's Court, having jurisdiction over the matter, for setting aside the nominations. When the matter came up to this Court in appeal, this Court appointed a sole arbitrator with consent of the parties. Thereafter in the presence ' of counsel for both parties this Court gave directions in the appeal that the arbitration records be sent to the sole arbitrator, and later extended the time for making the award, and gave directions regarding the venue. The arbitrator gave his award, directing the payment of a certain sum by the appellant to the respondent with simple interest at 9% from a date anterior to the reference, and filed the award ip. this Court 'the next day. The respondent filed a petition for passing a decree in terms of the award but the appellant opposed the petition. On the questions : (1) Whether the arbitrator had no power suo motu to file his award; Whether the award should not have been filed in this Court as it is not the Court contemplated by sections Z((4) and 14(2) of the ; and (3) Whether the arbitrator had no jurisdiction to. award the interest from a date anterior to the date of award or reference, HELD : (1) There is nothing in section 14(2) of the Act which precludes the arbitrator from filing the award suo motu and it is not correct to say that the award should be filed only if the parties make a request to the arbitrator to file it, or make an application to the Court for that purpose. The arbitrator having filed the award the next day after making it, no question of limitation arises. [239 G B] Narayan Bhawu vs Dewajibhawu, A.I.R. 1945 Nag. 117, approved. (2) The expresion 'Court ' occurring in section 14(2) of the Act will have to be understood in the context in which it occurs, because, the definition of the word in section 2(c) applies only when there is nothing repugnant in the subject or context. The word 'Court ' would include 'an appellate court ' and the word 'suit ' would include 'appellate proceedings '. Merely because the order of this Court appointing the sole arbitrator stated 'the ,appeal is allowed ' it is not as if this Court had lost all jurisdiction regarding the arbitration proceedings. The various directions given by this Court indicate that this Court retained full control over the arbitration proceedings. Therefore this Court is the Court under section 14(2) where the arbitration award should be validly filed. [240 E. H; 241 B D] 234 Ct. A. Ct. Nachiappa. Chettiar & Ors. V. Ct. A. Ct. Subramaniam Chettiar; , , referred to. (3) In the present case, all the disputes including the claim for the payment of interest had been referred to the arbitrator. The contract does not provide that no interest was payable on the amount that may be found due. Therefore the respondent was entitled, under section 61 (2) of the , to claim interest from the date on which the price became due and payable. The arbitrator had found that the price had become payable from a date anterior to the date of the award. There fore, the award of interest from the anterior date was justified. The award of interest at 9% 'is also not exorbitant because the parties themselves claimed interest at 12%, [245 A G] Union of India vs A. L. Rallia Ram, ; and Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd. Indore; , , followed,

Appeal Nos. 724 725 of 1992. From the Judgment and Order dated 13.11.90 & 10.8.90 of the Central Administrative Tribunal, New Bombay in M.P. No. 855/90, & O.A. No. 799 of 1989. N.M. Ghatate, Anand Prasad and S.V. Deshpande for the Appellant. T.C. Sharma and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted in both the matters. B.G. Kajrekar joined service as Chief of Police on August 1, 1954 in Dadra and Nagar Haveli. He worked in that capacity upto April 19, 1966. Thereafter he was sent on deputation to the Central Reserve Police, 62 Neemuch (Madhya Pradesh). He came back to his original post in Dadra and Nagar Haveli on November 17, 1967 and worked as Chief of Police upto April 6, 1971. He was transferred to Delhi Armed Police on April 7, 1971 where he worked as Deputy Superintendent of Police till his retirement on July 31, 1977. He has thus, put in about twenty three years of service. Kajrekar was not given pension on the ground that throughout his service he worked on officiating basis and was never appointed substantively to any of the posts held by him. Kajrekar challenged the action of the respondents, denying pension to him, before the Central Administrative Tribunal, Bombay. The Tribunal rejected his application on the ground that he retired from service without holding lien on any substantive post and as such was not entitled to pension under Rule 13 of the Central Civil Services (Pension) Rules, 1972 (the Rules). The application of Kajrekar was disposed of ex parte by the Tribunal and his prayer for restoration and hearing was also rejected. These appeals by way of special leave petitions are against the orders of the Central Administrative Tribunal. It is not disputed that the post of Chief of Police under Dadra and Nagar Haveli Administration was declared permanent with effect from June 14, 1967. On that date the appellant had already put in about thirteen years of service but his case for confirmation was not considered on the ground that there were no Recruitment Rules for the post in existence. The Recruitment Rules for the post of Chief of Police under the Administration of Dadra and Nagar Haveli came into force on January 19, 1980. The said Rules provided "by transfer on deputation" as the method of recruitment to the post of Chief of Police. The Recruitment Rules have no relevance to the question of confirmation of the appellant as he had retired from service on January 31, 1977 much before the coming into force of the Recruitment Rules. It was incum bent on the respondents to have considered the question of confirmation of the appellant before his retirement, specially when he was being retired after serving the respondents for twenty three years. It was wholly arbitrary on the part of the respondents to have kept the appellant as an unconfirmed employee for a period of twenty three years on the ground that there were no Recruitment Rules for the post he was holding. The Union Territory of Dadra and Nagar Haveli in its counter filed in this Court has stated that after the publication of the Recruitment Rules 63 a Departmental Promotion Committee was convened on July 4, 1981 for considering the question of confirmation of the appellant as Chief of Policy. The Departmental Promotion Committee did not recommend the appellant for confirmation on the ground that during the course of his service, two departmental enquiries were instituted against the appellant. The enquiries could not be completed before the appellant 's retirement and the findings were made available thereafter. The proceedings of the Departmental Promotion Committee further show that as a result of the enquiries Rs. 4,000 was to be deducted from the gratuity amount of the appellant as a measure of punishment. The Departmental Promotion Committee found that the confidential reports of the appellant for the last three years were good but the Committee declined to recommend confirmation because of the two enquiries. It is not disputed that the findings in the two enquiries were never communicated to the appellant during the period of his service. Those were served on him only after retirement. The question of his confirmation which was due in the year 1967 could not have been linked with the enquiries which were initiated at a much later stage. The Departmental Promotion Committee should have considered the appellant for confirmation on the basis of the record of the appellant as existed in the year 1967/1968. There is no material before us to show that the service record of the appellant prior to 1970 was adverse in any manner rather the averments made by the appellant in the rejoinder to the effect that there was nothing adverse against him on the record prior to 1971, have not been controverted. Even the Departmental Promotion Committee found the confidential reports of the appellant for the last three years as good. We are of the view that on the availability of a permanent post of Chief of Police on June 14, 1967 the appellant was entitled to be confirmed against the said post. It was wholly arbitrary for the respondents to have deferred the question of confirmation of the appellant on the ground that there were no Recruitment Rules. We, therefore, hold that the appellant having served the respondents for about thirteen years on June 14, 1967 when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time, he was entitled to be confirmed in the said post. In that view of the matter the appellant was a confirmed employee when he retired from service on July 31, 1977. We, therefore, direct the respondents to treat the appellant as having 64 been retired as a confirmed employee and fix his pension and other post retiral benefits on that basis. We further direct the respondents to complete the pension case of the appellant within three months from today and pay him all the arrears of the pension within two months thereafter alongwith 12% interest on the said arrears. We allow the appeals with costs which we quantify as Rs. 10,000. G.N. Appeals allowed.

The appellant retired in 1977 after putting in 23 years of service. But he was not given pension on the ground that throughout his service he was working on officiating basis and was never appointed substantively to any of the posts held by him. The appellant challenged the denial of pension to him before the Central Administrative Tribunal. The Tribunal held that since the appellant retired from service without holding lien on any substantive post, he was not entitled to pension under Rule 13 of the Central Services (Pension) Rules, 1972. The application of the appellant was disposed of ex parte by the Tribunal and his application for restoration and hearing was also rejected. Against these orders of the Tribunal appellant preferred the present appeals. The Respondents contested the appeals on the ground that the Departmental Promotion Committee did not recommend the appellant 's confirmation since two departmental enquiries were initiated against him, resulting in deduction of Rs. 4,000 from his gratuity, by way of punishment. Allowing the appeals, this Court, HELD: 1. Admittedly the findings in the two enquiries were never communicated to the appellant during the period of his service. Those were served on him only after retirement The question of his confirmation which was due in the year 1967 could not have been linked with the enquiries which were initiated at a much later stage. The Departmental Promotion Commit60 61 tee should have considered the appellant for confirmation on the basis of the record of the appellant as existed in the year 1967/1968. There is no material on record to show that the service record of the appellant prior to 1970 was adverse in any manner. Even the Departmental Promotion Com mittee found the confidential reports of the appellant for the last three years as good. On the availability of a permanent post of Chief of Police on June 14, 1967 the appellant was entitled to be confirmed against the said post. It was wholly arbitrary on the part of the respondents to have deferred the question of confirmation of the appellant on the ground that there were no Recruitment Rules. The appellant having served the respondents for about thirteen years, on June 14, 1967 when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time, he was entitled to be confirmed in the said post. In that view of the matter the appellant was a confirmed employee when he retired from service on July 31,1977. [63D G] 2. The respondents are directed to treat the appellant as having been retired as a confirmed employee and fix his pension and other post retiral benefits on that basis. The respondents are further directed to complete the pension case of the appellant within three months and pay him all the arrears of the pension within two months thereafter alongwith 12% interest on the said arrears. [63H; 64A]

ins Matters. A. Movement by Road: (a) WP. Nos.2907 2908,3234, 3238 39,3164,3254, 3630 31,3686, 3783, 3816, 4816, 4929 31, 4836 38, 4996 5001, 5051 54, 5089 93, 5136 46, 5247, 3160, 3634, 4494,4616,4967, 5362 71, 5416 20, 5447 50,5716 17, 5840,6015,6587 89 & 6609 14/81. (b) WP. 5062,5157 58,5451 & 5615 17/81. (c) WP Nos. 5097,5042, 5098, 5017, 5214 & 6135 36/81 & 7003/81. (d) WP. Nos.3421, 3407, 3408 13, 3422, 3536, 3561 64, 5238,13824, 5466, 5544, 6009, 6130 31, 6572 74 & 6582 83/81. (e) WP. 4904 4905, 5080, 5094, 5239 45, 5358 59, 5395, 5483, 5484 88, 5489 92, 5734 39, 6584 86 & 6817 21/81. (f) WP. Nos.4960 62, 4958 59, 5129 33, 5219 20, 5331 33, 5518 19, 5526, 5428 31 & 5527/81. (g) WP. 4526, 4926, 4995, 5046, 5048 50, 5100, 5101, 5136 46,5402 11, 5436 38, 5560, 5520 21, 5562,5558, 5556, 5559,5550,5546 47, 5552, 5555, 5553 54,5511, 5482, 5618 19,5809 20,6132 33, 6244, 6273 75,6267 72, 5512 14, 5515,6570 and 5562/81, 7027 29 and 7032 34/81. (h) WP. Nos.5221,5380 83,5129 33,5421 22,5440, 5507 10, 5662, 5806 5807, 6245, 6246, 6265, 6398 and 6684/81. 1145 (i) WP. 3592, 3353, 5396, 6016, 6247 48, 6616, 6668 and 6798/81. (j) WP. Nos.5003, 4453, 4455 56,5346 48,4955,5082 89, 5577 80, 5581 and 5724/81. (k) WP. Nos.3489 and 4293/82. (l) WP. No. 4818/81. (m) WP. Nos.2916,2932,3242, 3297 3302,3334 43, 3475, 4098 4100, 4136, 4304, 4187, 4777, 5007 17,5027 34, 5352 55, 5473 79, 5604 5608, 5740 42, 5743 44, 5821, 6012 13 and 5583 92/81. (n) WP Nos. 5391 and 5525/81. (o) WP No. 5443/81. (p) WP. Nos. 5444,5663 and 6266/81. (q) WP. No. 5464/81. (r) WP. 5451 and 5564 66/81. (s) WP. No. 5807/81. (t) WP. Nos.5571 75, 5622 29 and 6014/81. (u) WP. Nos.5718 19/81 and 6943/81. (v) WP. No. 5568 69/81. B. Restriction on Quantum of Food Grains which can be held: (a) WP. 2932, 3776 3780, 4140 45, 4326 28, 4876 4902, 4670 78 and 5473 79/81. (b) WP. No. 5480/81. (c) WP. 4955 56,5330,5392,3823 and 6278/81. (d) WP. Nos. 5529 30/81. (e) WP. Nos.5531 32/81. 1146 (f) WP. 5841 50/81. (g) WP. 5656 58/81. (Under Article 32 of the Constitution of India) Hari Sarup, M.N. Phadke, Soli J. Sorabjee, J.P. Goyal and C.M. Lodha, (M/s. B. Datta, R.A. Gupta, Miss Kamini Jaiswal, Rajiv Dutta, Manoj Swarup and Miss Lalita Kohli, R.S. Sharma, R.K. Jain, Pankaj Jain, P.K. Jain, K.K. Jain, K.B. Rohatgi, B.R. Kapur, B.S. Tawakley, S.R. Srivastava, N.N. Sharma, A.K. Goel, Mitter and Mitter and Co., S.K. Jain, Rajesh Jain, Mukul Mudgal, M. Qamaruddin, Mrs. M. Qamaruddin, Anis Suhrawardhy, A.P. Mohanty, K.K. Gupta, Ravi Prakash Gupta, C.K. Ratnaparkhi, S.C. Birla, M.C. Dhingra, and S.K. Gambhir for the appearing Petitioners. G.N. Dikshit, O.P. Rana, Mrs. Shobha Dixit, R.N. Poddar, G. Gopalakrishan, A.V. Rangam, B.D. Sharma, D.P. Mohanty and A. Shroff for the Respondents. The Judgment of the Court was delivered by SEN, J. The issue in this and the connected 505 petitions under article 32 of the Constitution is of far reaching significance. It raises questions of the highest importance as to the scope and extent of the executive power of the State under article 162 of the Constitution, in relation to regulation and control of trade and commerce in food stuffs. It necessarily involves a claim by the petitioners who are wholesale dealers of foodgrains that the exercise of such governmental power conflicts with the rule of law and is in flagrant violation of the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution and the fundamental right to carry on trade and business guaranteed under article 19 (1) (g) of the Constitution. These petitions fall into two distinct and separate categories, one by the wholesale dealers of foodgrains from the Union Territory of Delhi and the neighbouring States of Punjab and Haryana, and the other by the wholesale dealers of foodgrains from the State of Uttar Pradesh. 1147 The short question that falls for consideration in some of the writ petitions by wholesale dealers of foodgrains from the Union Territory of Delhi and the State of Punjab and Haryana is whether the action of the State Government of Uttar Pradesh in setting up check posts on its borders and the stoppage and seizure of wheat in transit through the State of Uttar Pradesh during the course of inter State trade and commerce to various destinations in the States of Madhya Pradesh and Maharashtra at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh on the strength of its instructions conveyed by its teleprinter message dated March 31, 1981, was in violation of article 301 of the Constitution. In a majority of the writ petitions by wholesale dealers from the State of Uttar Pradesh, two questions arise, (1) whether Notification No. P XXIX Food 5 5 (42)/80 dated April 21, 1981, issued by the State Government of Uttar Pradesh, in exercise of the powers conferred by section 3 read with section 5 of the (hereinafter referred to as the Act), by which cl.4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, has been amended, providing that no wholesale dealer, commission agent or retailer shall have in stock wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time, Infringes the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) and (2) whether the governmental instructions conveyed by its teleprinter message dated March 31, 1981, placing restrictions on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State, were in breach of the fundamental right under article 19 (1) (g) read with article 301 of the Constitution. The following are the facts and circumstances so far as necessary to show as to how the legal questions are presented. It would be convenient first to deal with the writ petitions filed by the whole sale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana seeking a declaration that the impugned action of the State Government of Uttar Pradesh in setting up check posts on the borders of the State and directing seizure of wheat in transit through the State, on the strength of the impugned teleprinter message, conflicted with the guarantees of inter State trade and commerce dealt with by Art, 301 of the Constitution. 1148 Facts in all these cases are more or less similar. The petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana allege that between April 29 30, 1981, they, acting as commission agents, purchased wheat from the open market in Delhi and elsewhere and despatched the same by trucks to various destinations in the State of Maharashtra and to some places in the State of Madhya Pradesh. According to them, the trucks laden with wheat were accompanied by relative bills, goods receipts, inter State transit passes etc. , duly crossed the check post at Faridabad and were also allowed to cross the check post at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh and were on their way to their respective destinations. They allege that the Senior Marketing Inspector, Agra, intercepted the trucks in question at the check post at Saiyan on the border between the State of Uttar Pradesh and Madhya Pradesh between April 30, 1981, and May 2, 1981. The seized trucks were brought back to the purchase point at Agra and the wheat was unloaded. Thereupon, the petitioners rushed to Agra and made an application on May 4, 1981, under s.6A read with sections 3 and 7 of the Act before the Additional District Magistrate (Civil Supplies), Agra, for the release of the seized wheat. In the said application, the petitioners, inter alia, claimed and unequivocally stated that there was no ban on export of wheat from the Union Territory of Delhi to other States, that the wheat in question was neither purchased at Agra, nor was it being transported from Agra to any other district in Uttar Pradesh, that Agra was a place in transit, and that the instructions of the State Government contained in the impugned teleprinter message dated March 31, 1981 did not constitute a validly notified order under sub section (5) of section 3 of the Act. The Chief Marketing Inspector, Agra, had in the meanwhile seized 42 trucks laden with wheat either at the check post at Saiyan or at Agra and lodged first information reports at the Saiyan police station or at the Civil Lines police station in respect of the consignments alleging that the movement of wheat was in contravention of the impugned teleprinter message and was therefore seized, and in three of them it was alleged that the wheat had been purchased at Agra. On the report of the Chief Marketing Inspector, the Additional District Magistrate (Civil Supplies), Agra drew up proceedings under section 6A of the Act and directed the police to complete the investigation within 15 days. 1149 On May 23, 1981, the Additional District Magistrate (Civil Supplies), Agra under sub section (2)(i) of section 6A of the Act passed interim orders for the sale of the seized wheat as it was subject to speedy and natural decay, at the request of the Senior Marketing Inspector, similar to the one reproduced below: These proceedings under s.6A of the started on the report of SMI Saiyan dated 30.4.1981 (Paper No. 1) whereby it was brought to the notice of this Court that truck nos. . were caught carrying 120 quintals. .of wheat respectively beyond Saiyan border outside the State in contravention of the orders issued by the Government vide telex No. 1061/29 Food 5 dated 31.3.1981 F.I.R. was lodged at P.S. Saiyan in respect of the above contravention. Notice under section 6B of the EC Act was issued to the O.Ps. . who were driving the trucks at the time of search and seizure. Replies were filed by the owners of the wheat contending that the said rules were not part of any Control Order under Section 3 of the EC Act nor they had any legal sanction for want of publication in the Official Gazette. The O.Ps. have pleaded that they were taking their goods in transit through Agra and in fact the movement of wheat so made by them was inter state movement which was not banned by the Central Government or State Government. I heard the learned counsels on behalf of the O.Ps. and the learned PO as well. In these proceedings final orders cannot be passed at this stage as the matter is still under investigation. PO directed to put up progress of investigation within 15 days from now. In the meanwhile I order that the wheat seized by SMI Saiyan be got purchased at the Official Price so that the same does not get damaged. The sale proceeds be got deposited in Government Treasury under proper Head of Account. 1150 This interim order is being passed under sub section (2) (i) of s.6A of the . File be put up after 15 days along with report of prosecuting office regarding progress of investigation. Sd/ N.N. Varma Addl. Collector, Agra 23.5.1981 The seized wheat has been purchased by the State Government on Government account at the procurement price and the sale proceeds credited into the Treasury. The State Government has filed a counter affidavit of the Chief Marketing Officer, Lucknow, in all these cases as also the affidavits of the Senior Marketing Inspectors at Agra controverting the allegations made by the petitioners. It is stated that the source of the power to effect the seizure was not the impugned teleprinter message, but the power of search and seizure conferred on an Enforcement Officer under cl. 6 of the U.P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and under cl.6 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978 (hereinafter called the 1976 Order and 1978 Order respectively), both of which were issued by the State Government, in exercise of the powers under section 3 of the Act, read with Government of India, Ministry of Agriculture (Department of Food) Notification No. G. S.R. 888 dated June 28, 1961, No. GSR 316 (E) dated June 20, 1972, No. GSR 452 (E) dated October 25, 1972, No. GSR 168 (E) dated March 13, 1973 and No. GSR 800 dated June 9, 1978 respectively, since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices. The State Government contends that the impugned teleprinter message dated March 31, 1981 was in the nature of an executive instruction issued by the State Government under its undoubted powers under article 162 of the Constitution for the due observance of the provisions of the two Control Orders. It is said that no person can carry on business in foodgrains as a dealer or as a commission agent except under and in accordance with the terms and conditions of a valid licence issued in that behalf under cl. 4 of the 1976 Order. It is also said that no wholesale dealer, commission agent or trader can have in stock more than 250 quintals, 250 quintals and 20 quintals respectively, at any time. It is asserted that the State Govern 1151 ment has the right to set up check posts for the purpose of verification so that there is no contravention of the provisions of the two Control Orders, particularly with a view to ensure that excess quantity of wheat is not transported in violation of the 1978 Order to other districts or other States. The State Government in the counter affidavit of the Chief Marketing Officer, Lucknow, specifically denies the allegations made by the petitioners that the 42 trucks laden with wheat seized at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra were in transit during the course of inter State trade and commerce. With regard to the seizure of the wheat, it is averred in para 13 of the counter affidavit: "The correct fact is that the authority on the bona fide apprehension that the wheat so moved actually was purchased from the State of Uttar Pradesh from nearby places and the same was being moved to other States on the garb of outside wheat. It is submitted that such traders who are exporting wheat alleged to have purchased from places other than the State of Uttar Pradesh and were/are carrying the same to other States, have only to satisfy the authorities concerned of the bona fides of such transactions. However there is no ban on such movement from one State to another. " As regards the check posts, it is submitted that the State Government is committed to provide price support in wheat to farmers at Rs. 130 per quintal. This commitment also involves purchase of wheat directly from the farmers without interference from traders/middlemen, who try to purchase wheat from the farmers at lower prices and sell the same at Government purchase centres with substantial profits. Such transactions are effected in fictitious names. This not only frustrates the procurement policy of the Government but also prejudicially and financially affects the producers ' interests. In para 5 it is accordingly averred: "In order to curb the above tendencies and preventing the activity of traders/middlemen the State Government have provided a simple system of verifying all transactions by traders. 1152 This procedure involves getting all transactions of wheat verified by the Deputy Regional Marketing Officer indicating inter alia the name of the persons to whom the stocks are sold, their licence numbers etc. and quantum of stocks sold, price paid etc. This process will make it simultaneously very difficult for traders to buy at low price from farmers and resell at high prices at the Government purchase centres. " As regards the impugned teleprinter message it was stated that it was issued by the State Government in order to sustain and maintain and maximise the procurement of wheat by introducing a system of verification at the check posts. The State Government contests the right of the petitioners falling in the first category, that is, wholesale dealers of wheat from the Union Territory of Delhi and the States of Punjab and Haryana, to relief under article 32 of the Constitution who question the legality and propriety of the seizures. It is a matter for investigation which is pending before the Additional District Magistrate (Civil Supplies), Agra and, according to it, the question cannot be decided without full investigation into facts. In support of the writ petitions, learned counsel appearing for the petitioners have, in substance, urged three grounds. (1) There was nothing to prevent the State Government from making a law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under article 19(1) (g) read with article 19(6) of the Constitution, or on the freedom of trade, commerce and intercourse, throughout the territory of India, guaranteed under article 301 of the Constitution, but the restriction must be by "law" or by an "order having the force of law" and not by recourse to the executive authority of the State under article 162 of the Constitution, i.e., by an executive action. (2) The seizure of the consignments of the wheat, while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without the "authority of law" and in violation of article 300A of the Constitution. The seizure of the wheat being wrongful, the petitioners were entitled to an appropriate writ, direction or order for the return of the seized wheat or the price thereof. (3) The impugned teleprinter message of the State Government dated March 31, 1981 on the basis of which the seizures were effected, in truth and 1153 substance, had no legal sanction and cannot be construed to be a notified order within the meaning of sub section (1) read with sub section (5) of section 3 of the Act; it was nothing but an executive direction. No executive action which operates to the prejudice of a citizen can be taken without the authority of law. It was asserted that the seizures effected were in compliance of the instructions contained in the impugned teleprinter message and not for breach of the two Control Orders and therefore it was nothing but a "colourable exercise" of power. The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government, without any legal sanction since the farmers were not willing to sell their wheat at the procurement price. Learned counsel for the petitioners also challenge the action of the Additional District Magistrate (Civil Supplies) Agra in passing an interim order in terms of sub section (2) (i) of section 6A of the Act for the sale of the seized wheat on Government account and for the sale proceeds to be credited into the treasury in an appropriate Head of Account; it is urged that under sub section (2) (ii) of section 6A of the Act there being no control price for wheat, the wheat should have been sold by public auction. In reply, learned counsel for the State has repelled all these contentions. It is submitted that the source of power to effect the seizure was not the impugned teleprinter message, but the two Control Orders issued under section 3 of the Act. He asserted that the wheat in question was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various other States. The wheat had in fact been purchased at Agra and was being lifted from the State of Uttar Pradesh and had, therefore, to be seized at the check post at Saiyan and at Agra. He points out that under cl. 3 of the 1976 Order, no person can carry on business as a dealer or commission agent, except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority. According to him, the seized wheat had been purchased at Agra in the course of trade, and they were not isolated transactions and, therefore, the Delhi traders committed contravention of cl. 3 of the 1976 Order. It is also pointed out that cl. 4 of the 1978 Order, as amended, provides that no person who is a wholesale dealer, commission agent or retailer shall have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals at a time. It is further pointed out, cl. 14 of the 1976 Order, and cl. 6 1154 of the 1978 Order confer the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the Government in that behalf, and the expression "enforcement officer" defined in cl. 2 (e) of the former Order and cl. 2(d) of the latter, includes the Chief Marketing Inspector. According to the learned counsel the Government instructions conveyed in the impugned teleprinter message is merely in the nature of an executive instruction for the enforcement of the two Control Orders. In support of the contentions, he also relies on the executive power of the State under article 162 of the Constitution. In the premises, the contention on behalf of the State is that the question whether the seized wheat was liable to be confiscated or not under section 6A of the Act, was a matter pending adjudication before the Additional District Magistrate (Civil Supplies) Agra. That depends on whether or not there was contravention by the petitioners of any of the Order issued under section 3 of the Act and, therefore, cannot be determined without full investigation into the facts. The Inter Zonal Wheat (Movement Control) Order, 1976, issued by the Central Government, in exercise of the powers conferred by section 3 of the Act has been rescinded with effect from April 13, 1977. The result of this is that the whole country constitutes a single zone for free movement of wheat except in such States where an order is issued under section 3 read with section 5 of the Act, placing a ban on export of wheat such as in the State of Rajasthan. Admittedly, the State Government of Uttar Pradesh has not issued any order under section 3 read with section 5 of the Act, placing a ban on export of wheat from the State or any restriction on inter district movement of wheat within the State. The State Government does not contest this position and indeed, the Chief Marketing Officer in his counter affidavit states: "The State of Uttar Pradesh has not banned the movement of wheat outside the State or from one district to another district within the State. It is submitted that such traders who are transporting wheat alleged to be purchased from a place other than the State of Uttar Pradesh and were/are carrying the same to other States other than Uttar Pradesh have only to satisfy the authorities concerned of the bona fides of the transactions. However, there is no ban on such movement from one State to another." 1155 The impugned teleprinter message dated March 31, 1981 runs as follows: "For: Regional Food Control, Agra/Bareilly/Dehradun/Faizabad/Gorakhpur Jhansi/Haldwani/Kanpur/Meerut/Varanasi Lucknow (by Hand) From: Secretary (Food) Lucknow. No. TP 1061/XXIX Food 5 Dated: Lucknow: March 31, 1981. Refer Tel TP 712/XXIX Food 5 5(1)/81 of 9th March 1981 regarding renewal of and issue of new licences to dealers(,) Government committed to provide benefits of support price to producers hence to ensure that maximum quantity of wheat is purchased by agencies (.) Para (.) After careful consideration Government have decided that with effect from first April 1981 till thirtieth June 1981 no repeat no fresh licences are to be issued to any person who wish to deal in wheat, wheat products or both as wholesaler commission agent retailer (.) Para (.) Government have also decided that during April 1981 to June 1981 movement of wheat by traders on private account to outside district shall be regulated only on the endorsement of Deputy Regional Marketing Officer concerned and hitherto this power being exercised by Senior Marketing Inspector shall not repeat not be used by them (.) Para (.) At the same time easy availability of wheat in open markets is to be ensured(.) Keeping all the relevant factors in view endorsement by Dy. R.M.O. should be made judiciously on genuine and bonafide grounds(.) Para(.) Dy. RMO will send daily report to RFC of the cases in which such permission is granted or endorsement made(. ) RFC will compile and send weekly report to Government(.) Permission to be given very sparingly and general impression made should be that they will not gain by doing any trading in wheat(.) Visit Mandis regularly and check quantities lying in traders premises(.) Presence of large stocks with trade means staff 1156 is not during their job properly(. ) Inform all concerned immediately for strict compliance(.) Dated: Lucknow; March 31, 1981 Sd/ M. Subrahmanyam Secretary Food & Civil Supplies Sec. 5 U.P. Secretariat, Lucknow. " There can be no doubt that the aforesaid teleprinter message was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the orders. It may be mentioned that the State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat, issued instructions that no fresh licences till June 30, 1981 were to be granted to any person who wished to deal in wheat, wheat products, or both, as well as a wholesale dealer, commission agent or a retailer. It further conveyed the policy decision of the Government that during April 1981 movement of wheat by traders on private account to outside districts shall be regulated only on the endorsement of the Deputy Marketing Officer concerned and not by the Senior Marketing Inspectors as hitherto before. The Government also directed the Regional Food Controllers to ensure easy availability of wheat in open market. As regards the making of endorsement, they were advised that the powers should be exercised with due circumspection. They were also asked to visit the mandis and keep a constant vigil on the stocks lying with the traders. There appears to be nothing unusual on the State Government issuing such executive instructions. Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check posts on the border and place restrictions on inter district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur vs State of Punjab, Mukherjea, C.J., dealt with the scope of articles 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any 1157 definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed: "Ordinarily the executive power con notes the residue of governmental functions that remain after legislative and judicial functions are taken away". It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. In Ram Jawaya Kapoor 's case (supra) it was contended that the executive power of the State did not extend to the carrying on of trade of printing, publishing and selling of text books for schools unless such trade was authorised by law. In repelling the contention, Mukherjea, C.J. speaking for the Court, observed : Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both of the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State. The learned Chief Justice then went on to observe : The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights 1158 guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and in operative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed. In Naraindas Indurkhya vs State of Madhya Pradesh & Ors Bhagwati, J., speaking for the Court, reiterated the principles laid down by Mukherjea, C.J. in Ram Jawaya Kapur 's case (supra) and held that the State Government could act in exercise of the executive power of the State under article 162 of the Constitution in relation to any matter with respect to which the State Legislature has power to make laws even if there was no legislation to support such executive action. There is no denying the fact that the State Legislature is competent to enact a law on the subject covered by Entry 33, List III, which reads: 33. Trade and commerce in, and the production, supply and distribution of, (b) foodstuffs, including edible oilseeds and oils. The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33 List III of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would not deprive the State legislature of its jurisdiction thereunder. The State legislature, therefore, could still make a law on the subject regulating trade and commerce in, and the production, supply and distribution of 'foodstuffs ' and the only question that would arise is one of repugnancy dealt with in article 254 of the Constitution. The executive power of the State being co extensive with its legislative power under Entry 33, List III, it relates to all matters covered by the subject 'foodstuffs ', 1159 trade and commerce in, and the production, supply and distribution thereof. This is, of course, subject to the limitation contained in Proviso to article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. This leads us to another aspect of the problem of considerable difficulty and importance. The subject 'search and seizure ', is a field which has not come before the court with considerable frequency, but this is a hard fact of life which the citizen does encounter very often. The executive power of 'search and seizure ' is a necessary concomitant of a welfare State. It tends to promote the well being of the nation. Many questions arising in the field of search and seizure are factual in nature. They involve varying degrees of difference among the infinitely diverse facts. Every factual variation presents not only a new problem, but also a new constitutional question. It is a limitless area in which different issues may arise with vast variations of facts which are involved in each individual case. This is, indeed, a peculiar field in which the decisions of courts do not help in clarifying the law. The decisions in the field are of little precedental value because, the more the cases that are decided, the more new issues arise, through possible factual variations. The check posts and barriers on the borders of the State of Uttar Pradesh are set up under section 28 of the U.P. Sales Tax Act, 1948 and are designed and meant to prevent evasion of sales tax and other dues. The constitutional validity of section 28 and its cognate provisions, sections 28A to 28C has, rightly, if we may say so, not been challenged before us. From the point of view either of Entry 54, List II, or of article 301 of the Constitution, there is no question of any lack of competence in the State legislature to set up the checkposts and barriers on the State 's borders. These provisions, read with the requirements of r. 83(4) of the U.P. Sales Tax Rules, 1948 require that the owner, driver or any other person in charge of the vehicle or vessel shall, in respect of such goods carried in the vehicle or vessel as are notified under sub section (1) of section 28A, carry with him, a declaration in Form XXXI, a certificate in Form XXXII, a transit pass in Form XXXIV in duplicate, cash memo, bill of sale or challan and a trip sheet in triplicate. The factual existence of these check 1160 posts or barriers on the State 's borders is not denied, nor their legality challenged. It is not suggested that the setting up of these check posts is a restriction on the freedom of trade, commerce and intercourse guaranteed under article 301 of the Constitution, or is such as directly and immediately restricts or impedes the free flow or movement of goods. It is also not suggested that these regulatory measures in setting up the check posts on the State 's borders are such as impede freedom of trade, commerce and intercourse. Just as inter State trade and commerce must pay its way and be subject to taxation, persons engaged in such inter State trade or commerce are equally subject to all regulatory measures. There is no reason why the check posts or barriers set up by the State Government under section 28 of the U.P. Sales Tax Act, 1948, cannot be utilised as a machinery for due observance of the laws, e.g. for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States. The instructions conveyed by the State Government by the impugned teleprinter message dated March 31, 1981, were a direct sequel to the Centre 's directives contained in its earlier teleprinter message. It was intended and meant to achieve three main objectives, namely, (1) to provide price support in wheat to purchasers with a view to sustain, maintain and maximise the procurement of wheat; (2) to prevent hoarding and blackmarketing; and (3) to provide for equitable distribution and availability of wheat at fair prices. These directions were obviously meant to subserve the object of the legislation and were in public interest. These cases were argued with much learning and resource particularly with reference to the rule of law and the consequent limitations on the executive power of the State under article 162 to 'trench ' upon the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) and the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under article 301 of the Constitution. It necessarily involves a claim by the State that the measures taken by the State Government by the impugned teleprinter message were nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another within the State and therefore were not a 'restriction ' on the fundamental right to carry on trade or business guaranteed under article 19 (1)(g) or on the freedom of trade, commerce and intercourse under article 301. 1161 The quintessence of our Constitution is the rule of law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In State of Madhya Pradesh vs Thakur Bharat Singh, the Court repelled the contention that by virtue of article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. It was observed: "Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. " The same principle was reiterated by the Court in Satwant Singh Sawhney vs Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors, and Smt. Indira Nehru Gandhi vs Shri Raj Narain. There can be no doubt that the , is a 'law ' within the meaning of article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by article 19(1)(g) and article 301 of the Constitution. The object of the Act is to provide, in the interests of the general public, for the control, production, supply and distribution of, and trade and commerce in, certain essential commodities. To appreciate the points involved, it is necessary to set out the material statutory provisions. Sub section (1) of section 3 of the Act provides as follows: "3(1). If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. 1162 Sub section (2) thereof provides that without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may provide for any of the matters enumerated therein. Sub section (5) provides that any order made under this section shall in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette. By virtue of the delegation of powers under section 5 of the Act the State Government in relation to such matters and subject to such conditions as may be specified, may exercise the powers of the Central Government under section 3 Clause (j) of sub section (2) of 3 provides that the Central Government or the State Government, as the case may be, may by order provide: "For any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyance and animals, and the seizure by a person authorised to make such entry, search or examination. ' Sub sections (1) and (2) of section 6A of the Act, insofar as material, provide as follows: "6A(1). Where any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, a report of seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order, may order confiscation of (a) the essential commodity so seized; 6A(2). Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, be may (i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; or 1163 (ii) where no such price is fixed, order the same to be sold by public auction: Provided that in case of foodgrains, the Collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government, as the case may be, for the retail sale of such foodgrains to the public." Learned counsel for the State Government, in all fairness, does not assert that the impugned teleprinter message having regard to the requirements of sub section (5), has the effect of a notified Order under section 3 of the Act placing a ban on export of wheat from the State or imposing a restriction on inter district movement of wheat. It is submitted that it only conveyed the instructions of the State Government requiring the Regional Food Controllers to be more vigilant to secure due observance of the laws. The question still remain whether the instructions conveyed by the teleprinter message had the force of law. It is therefore to be considered whether the instructions conveyed by the State Government by the impugned teleprinter message were relatable to the two Control Orders and therefore could be considered to be 'law ' or an order having the force of law placing reasonable restriction on the freedom to carry on any occupation, trade or business guaranteed under article 19(1)(g) read with article 19(6) of the Constitution or on the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under article 301 o the Constitution. It is further to be considered whether the seizure of wheat in transit was with authority of law. It is submitted that although the impugned teleprinter message dated March 31, 1981 was in the nature of executive instructions of the State Government to the Regional Food Controllers of the various regions to secure compliance with the two Control Orders, it had the force of law. It is pointed out that under licence conditions Nos. 11, 12 and 13 of the licence issued in Form B under cl. 4 of the 1976 Order, a dealer is required to comply with any direction that may be given by the State Government in regard to purchase, sale or storage for sale of foodgrains, to furnish such information relating to his business as may be demanded of him and to carry out such instructions as may, from time to time, be given, 1164 by the State Government or the licensing authority, and to give all facilities at all reasonable times, to the enforcement officer or the licencing authority or any officer authorised by him or the State Government for the inspection of the stocks etc. It is further pointed out that the State Government of Uttar Pradesh has by Notification No. P XXIX Food 5 5(42)/80 dated April 21, 1981, in exercise of the powers conferred by section 3 read with section 5 of the Act, with the prior concurrence of the Central Government, issued the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) (First Amendment) Order, 1981. By cl. 2 thereof, a new cl. 4 has been substituted in the 1978 Order by which the stock limit of dealers in foodgrains has been re fixed, as it was of the opinion that it was necessary and expedient so to do for securing equitable distribution and availability of wheat at fair prices. The new cl. 4 provides that no wholesale dealer, commission agent or retailer, shall have in stock, wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time. The re fixation of the stock limit of a wholesale dealers at 250 quintals, at any time, is to ensure that wholesale dealers in the State of Uttar Pradesh do not try to corner stocks of wheat for purposes of speculation. The submission is that the State Government without placing any restriction on movement of wheat from the State of Uttar Pradesh to various other States, has virtually frozen the excess stock of wheat lying with wholesale dealers of foodgrains in the State. There is, in our opinion, considerable force in these submissions. The real question at issue is whether or not the seizure of wheat was with the authority of law. The fundamental right to carry on trade or business guaranteed under article 19(1)(g) or the freedom of inter State trade, commerce and intercourse under article 301 of the Constitution, has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights. The Court must balance the individual 's rights of freedom of trade under article 19(1)(g) and the freedom of inter State trade and commerce under article 301 as against the national interest. Such a limitation is inherent in the exercise of those rights. 1165 Under article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under cl. The principles underlying in cls. (5) and (6) of article 19 are now well settled and ingrained in our legal system in a number of decisions of this Court, and it is not necessary to burden this judgment with citations. The expression 'reasonable restriction ' signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by cl. (6) of article 19, it must be held to be wanting in that quality. The nature of the right alleged to have been infringed is that wholesale dealers in foodgrains from the State of Uttar Pradesh or elsewhere are prevented from moving their stock of wheat to various other States or from one district to another without the transaction being verified and duly endorsed by the Deputy Marketing Officer or the Senior Marketing Officer concerned. The other restriction on the enjoyment of their right placed by the impugned teleprinter message is that there should be physical verification at the checkposts on the State 's borders. These steps were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State. The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation. It cannot be said that they do not contain the quality of reasonableness or were not in the interests of the general public. In judging the validity of these restrictions, the Court has to strike a proper balance between the freedom guaranteed under article 19(1)(g) and the social control permitted by article 19(6). If, therefore, the seizure can be justified on the basis of any valid law, it cannot be held to be illegal. This is equally true of article 301. article 301 imposes a general limitation on all legislative 1166 power in order to secure that trade, commerce and intercourse throughout the territory of India shall be free. Having placed a general limitation on the legislative powers of Parliament and the State Legislatures, article 302 relaxes that restriction in favour of Parliament by providing that authority may, by law, impose such restrictions on the freedom of trade, commerce and intercourse between one State and another and within any part of the territory of India in the public interest. Likewise, article 304(b) provides that notwithstanding anything in article 301 or article 303, a legislature of a State may, by law, impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest, provided that no Bill or amendment for the purpose of cl. (b) shall be introduced or moved in the legislature of a State without the previous sanction of the President. Although article 301 guarantees that trade, commerce and intercourse throughout the country shall be free, the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public. The word 'free ' in article 301 does not mean freedom from laws or from regulations. article 301 guarantees freedom of trade, commerce and intercourse throughout the country from any State barriers. It declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. The whole object was to bring about the economic unity of the country under a federal structure, so that the people may feel that they are members of one nation. One of the means to achieve this object is to guarantee to every citizen the freedom of movement and residence throughout the country. That is achieved by article 19(1)(d) and (e). No less important is the freedom of movement or passage of commodities from one part of the country to another. The progress of the country as a whole also requires free flow of commerce and intercourse as between different parts, without any barrier. This freedom of trade, commerce and intercourse throughout the country without any 'State barriers ' is not confined to inter State trade but also includes intra State trade as well. In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between one State and another, but between any two points within the territory of India whether any State border has to be crossed or not. It is now well settled that the regulatory measures or measures imposing compensatory taxes do not come within the purview of the 1167 restrictions contemplated by article 301. The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse. It cannot be said that the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are a 'restriction ' on the freedom of trade, commerce and intercourse within the country, i.e, across the State or from one part of the State to another. These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another. Even if these requirements are construed to be a 'restriction ' on the inter State or intra State trade, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature. Nor can it be said that such restrictions do not satisfy the test of reasonableness. The question whether or not the seizure of the wheat was for contravention of any order issued under section 3 of the Act is pending investigation before the Additional District Magistrate (Civil Supplies), Agra. For the establishment of their rights the petitioners have still to establish that the wheat in question was bought by them in open market in Delhi and elsewhere and was being merely transported through the State of Uttar Pradesh in the course of inter State trade and commerce. If that be so, then there was no contravention of any order issued by the Central Government under section 3 or by the State Government under section 3 read with section 5 of the Act. If, on the contrary, the wheat had been purchased by them at Agra or nearby places within the State of Uttar Pradesh, the question would arise whether such purchase, storage or sale of wheat was in contravention of any of the two Control Orders. In case there was such contravention of any of the provisions of the two Control Orders, then there was undoubtedly the power of search and seizure. The case of the State Government before us was that the source of power to effect the seizure was the two Control Orders. It was asserted that the wheat was not being transported during the course of inter State trade and commerce from the Union Territory of Delhi to various other States, but had, in fact, been purchased at Agra and was being lifted from the State of Uttar Pradesh and had therefore to be seized at the check post at Saiyan and at Agra. Under cl. 3 of 1976 Order, no person can carry on business as a 1168 dealer or commission agent except and in accordance with the terms and conditions of a licence issued in that behalf by the licensing authority. The term 'dealer ' is defined in section 2(c) of the Order to mean a person engaged in the business of purchase, sale or storage for sale of foodgrains. According to the State, the seized wheat had been purchased at Agra in the course of trade and they were not isolated transactions and, therefore, the Delhi traders committed contravention of cl. 3 of the 1976 Order. 14 thereof confers the power of search and seizure on an enforcement officer or the licensing authority or any other officer authorised by the State Government in that behalf. The expression 'enforcement officer ' is defined in cl. 2(e) of that Order and it includes the Chief Marketing Officer and in that capacity the Chief Marketing Officer, having reason to believe that contravention of the provisions of the Order had been, was being, or was about to be committed, had the power to seize the trucks at the check post at Saiyan and effect the seizure of the trucks laden with wheat and bring them to the purchase point at Agra. Furthermore, under cl. 4 of the 1978 Order, as amended, no person who is a wholesale dealer, commission agent or a retailer, shall have in stock wheat in quantities exceeding 250 quintals, 250 quintals and 20 quintals respectively at a time. 6 confers the power of search and seizure on an enforcement officer which term as defined in cl. 2(d) likewise includes the Chief Marketing Inspector, Under cl. 6(d), the Chief Marketing Inspector, as an enforcement officer, had the power to seize any article in respect of which he had reason to believe that a contravention of the Order had been, was being, or was about to be committed. The fixation of the maximum limits of stocks of wheat at 250 quintals 250 quintals and 20 quintals respectively, which a wholesale dealer, commission agent or a retailer may hold, at any one time, has necessarily the effect of freezing the excess stock of wheat lying with such dealer. This also results in preventing the movement of such excess stock of wheat from the State of Uttar Pradesh to various other States or from one district to another. The excess stock of wheat lying with such dealer, that is, a wholesale dealer, commission agent or a retailer, in truth and substance, became their 'unlicensed stock '. If really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, commission agents or retailers in the State of Uttar Pradesh, as is alleged, it is possible to contend that there was a contravention of the provisions of cl. 4 of the 1978 Order. The question whether the seizure was for any contravention of any Order issued under 1169 section 3 of the Act has to be determined by the Additional District Magistrate (Civil Supplies), Agra, on the evidence adduced by the parties before him. The facts being controverted, the petitioners have no right to relief under article 32 of the Constitution. Each of the petitioners has filed a sheaf of documents showing that the wheat had been purchased in the open market in Delhi and elsewhere, that the trucks laden with their wheat were accompanied by the relevant bills, goods receipts, inter State transit passes etc., that the trucks in question were allowed to cross the check posts at Kotwan on the border between the Union Territory of Delhi and the State of Uttar Pradesh. but were seized either at the check posts at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh or at Agra, while they were in transit through the State of Uttar Pradesh. It was also asserted that all the documents were seized and taken away by the Senior Marketing Inspector, and that he had given an acknowledgment of the same. Learned counsel appearing for the State vehemently contends that these documents were not shown to the authorities concerned and it is for the petitioners to prove these documents before the Additional District Magistrate (Civil Supplies), Agra, in support of their claim We cannot act on the documents because the transactions are still to be proved. It is asserted on behalf of the State Government that such documents could always be brought into existence, particularly when none of the transactions were effected through a Bank. This Court cannot obviously pronounce upon the genuineness of the transactions or record any finding on the basis of the documents when the facts are in dispute. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. article 300A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to article 300A. The word 'law ' in the context of article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law. The decisions in Wazir Chand vs The State of Himachal 1170 Pradesh and Bishan Das and others vs The State of Punjab and others are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. In Wazir Chand 's case (supra), the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir. The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any Magistrate; nor was it under sections 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the police in India, and the Indian police were not authorised to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under article 31(1). This view was reaffirmed in Bishan Das 's case (supra). The effect of the Constitution (Fourth) Amendment Act, 1955, is that there can be no 'deprivation ' unless there is extinction of the right to property. It is urged that the seizure of wheat was not with a view to extinction of the rights of the petitioners, but the property in the seized wheat was theirs. No doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the Additional District Magistrate (Civil Supplies), Agra, that there was no contravention by them of an order issued under section 3 of the Act. It is not necessary for us to deal with the question whether an illegal seizure amounts to 'deprivation ' of property within the meaning of article 300A for purposes of this case, as the State Government does not dispute the right of the petitioners to the sale proceeds. It is true that the seizure was with intent to confiscate under section 6A of the Act, but that would not make the seizure illegal, if, ultimately, it is found that there was contravention of an order issued under section 3 of the Act. If the facts were not in controversy and if the petitioners were also able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course of inter State trade and commerce from the Union Territory of Delhi, perhaps, they would be entitled to the return of the seized wheat, or, in the alternative, 1171 to the payment of price thereof. The State contests the right of the Court to investigate into the facts, particularly when the matter is a fact in issue in the aforesaid proceedings before the Additional District Magistrate (Civil Supplies), Agra. Normally, it is not the function of this Court to investigate into facts in proceedings under article 32 of the Constitution when they are controverted with a view to discerning the truth. The matter must, in a situation like this, be left to the fact finding body. For the establishment of their right to relief under article 32, the petitioners must, in our opinion, establish the necessary fact before the said Additional District Magistrate in the proceedings under section 6A of the Act. If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure. The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government, and not for breach of the two Control Orders and, therefore, were nothing but a 'colourable exercise of power ', is dependent on facts to be found on investigation. Further, the question that there being no control price for wheat, the wheat should have been sold by public auction, is again a question that must be raised before the Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act. Turning to the petitions under article 32 of the Constitution by wholesale dealers of foodgrains from the State of Uttar Pradesh, learned counsel appearing for these petitioners challenged the impugned teleprinter message dated March 31, 1981, and the Notification No. P. XXIX Food 5 5(42)/80 dated April 21, 1981, issued by the State Government of Uttar Pradesh, by which cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, has been amended, particularly on three grounds, namely, (1) the impugned notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is an unreasonable restriction on the freedom of trade guaranteed under article 19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same, i.e., 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary, irrational and irrelevant and thus violative of article 14 of the Constitution; and (3) the instructions conveyed by the State Government by its teleprinter message dated March 31, 1981, placing restrictions 1172 on movement of wheat by traders on private account from the State of Uttar Pradesh to various other States and on inter district movement of wheat within the State, were in breach of their fundamental right under article 19(1)(g) read with article 301 of the Constitution. The first and second contentions may conveniently be dealt with together. In order to appreciate these contentions, it is necessary to state a few facts: During the year 1979 80, the country was victim to a very serious drought which affected with Kharif as well as Rabi crops. The Government of India, therefore, fixed a target of 9.5 million tonnes of wheat to be purchased in the summer months of 1981 for the national buffer stock. It fixed the procurement price at Rs. 130 per quintal as against the support price of Rs. 127 per quintal recommended by the Agricultural Price Commission to provide a better incentive to the farmers. The procurement was carried out as a measure of price support without any restriction on movement from one State to another. However, some of the States were implementing local laws with regard to ensuring that the private trade adhered to the stock limit restrictions on them and did not try to corner stocks for speculation purposes. The original target fixed for procurement was 9.5 million tonnes but at the end of June, only 6.5 million tonnes had been purchased, leaving a deficit of 3 million tonnes. The result was that the Government of India was thus forced to buy 1.5 million tonnes of wheat in the world market. The Government 's procurement drive was mainly frustrated by wholesale dealers of foodgrains cornering the stocks of wheat by paying a price higher than the procurement price to the farmers. The imperatives of the situation demanded that the speculative tendencies of the trade were curbed by strictly enforcing the stock limits of traders. Under original cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, a wholesale dealer, commission agent or a retailer could have in stock wheat not more than 750 quintals, 750 quintals and 100 quintals respectively, at any time. In view of the worsening situation in the national buffer stock and in the light of the experience gained during the past few years, the State Government was of the opinion that it was necessary and expedient to re fix the stock limits of such dealers. This was expected to maximise procurement of wheat to meet the requirement of public distribution, as well as, the buffer stock. 1173 It cannot be asserted that the restriction imposed by the State Government on wholesale dealers of wheat is either arbitrary or is of an excessive nature. The fixation of the stock limit of wheat to be possessed by wholesale dealers, at any time, at 250 quintals is an important step taken by the State Government to obviate hoarding and black marketing in wheat which is in short supply. It is hardly necessary to emphasise the extent and urgency of the evil sought to be remedied thereby. Perhaps fixation of the minimum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is too low, but the restriction so imposed cannot be treated to be arbitrary or of an excessive nature, beyond what is required in the national interest. It is a matter of common knowledge that wholesale dealers of foodgrains mainly operate in large cities and towns and have the means and capacity to manipulate the market by withholding stocks of a commodity. There was need to check such speculative tendencies in the trade. It was therefore felt expedient to re fix the stock limit of wheat for wholesale dealers at 250 quintals at a time, as in the case of a commission agent. The underlying idea is that the wholesale dealers should be allowed to continue their trading activities within reasonable limits. The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time, in stock, a wagon load of wheat. In Krishan Lal Praveen Kumar & Ors. etc. vs The State of Rajasthan, this Court has interpreted the words 'at any time ' as meaning 'at any given time '. This means that a wholesale dealer should not have in stock more than 250 quintals at a time. But there is nothing to prevent a wholesale dealer from entering into a series of transactions during the course of the day. This Court in Krishan Lal Parveen Kumar 's case (supra) and Suraj Mal Kailash Chand & Ors. vs Union of India & Anr., has upheld the validity of a similar notification dated March 23, 1981, issued by the State Government of Rajasthan in exercise of the powers conferred by cl. 18 of the Rajasthan Trade Articles (Licensing and Control) Order, 1980, fixing the maximum limit of wheat to be possessed by a dealer at any one time at 200 quintals, on the ground that it is a reasonable restriction by the State Government within the meaning of article 19(6) of the Constitution. In view of these decisions, it is difficult to conceive as to how the contention based on article 19(1)(g) of the Constitution can survive. 1174 True it is, if the governmental action is arbitrary or there is no rational nexus to the object sought to be achieved it is liable to be struck down as violative of article 14 of the Constitution. The State Government has adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities. To obviate hoarding and blackmarketing in foodstuffs, it has promulgated the Order. It introduces a system of checks and balances to achieve the object of the legislation, i.e., to ensure equitable distribution and availability of essential commodities at fair prices. It cannot be said that looking to the prevailing conditions, the imposition of such restrictions does not satisfy the test of reasonableness. Nor can it be said that the fixation of such stock limit is arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, violative of article 14. On the contrary, the limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is a reasonable restriction within the meaning of article 19(6) of the Constitution. One further point requires to be noticed. The contention that the action taken by the State Government in issuing the impugned teleprinter message amounts to an 'intrusion ' on the fundamental right to carry on trade or business under article 19(1)(g) or on the freedom of trade, commerce and intercourse under article 301 of the Constitution appears to be wholly misconceived. As already stated the instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are not a 'restriction ' on the fundamental right to carry on trade or business guaranteed under article 19(1)(g) or on the freedom of trade, commerce and intercourse under article 301. These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another. Even if these requirements are considered to be a 'restriction ' on inter State or intra State trade, that is, across the State or from one part of the State to another, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of article 19(1)(g) or article 301 of the Constitution. The State Government in its return has stated that there is no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one 1175 district to another within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned. The petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are, therefore, free to carry on their business within the permissible limits, i.e., they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals at a time. In the result, the writ petitions must fail and are dismissed. The stay orders passed by the Court, from time to time, stand vacated. Formal orders for vacating stay granted in those matters need not be issued. There shall be no order as to costs. S.R. Petitions dismissed.

In exercise of the powers vested under the Essential Commodities Act, 1951, the State Government of Uttar Pradesh issued two orders, namely (1) the Uttar Pradesh Food Grains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and (2) the Uttar Pradesh Food Grains (Procurement and Regulation of Trade) Order 1978. By its teleprinter message dated March 31, 1981 to all the Regional Food Controllers, the State Government issued certain further instructions for effective enforcement of the two Orders and in particular regulating the inter district and outside the State movement of wheat by traders on private account. By a Notification No. P XXIX Food 5 5(42)/80 dated April 21,1981, clause (4) of the 1978 Order, was amended providing that no wholesale dealer, commission agent, or a retailer shall have in stock wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time, since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices. Pursuant to the powers vested in them, the Senior Marketing Inspector and the Chief Marketing Inspector, Agra, intercepted and seized the trucks laden with wheat of the petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh, and after bringing them back to the purchase point at Agra unloaded the wheat from the said trucks. While the petitioners moved an application for the release of the seized wheat before the Additional District Magistrate (Civil Supplies), Agra, the Marketing Inspectors not only lodged First Information 1138 Reports but obtained an interim order on May 23, 1981 for the sale of the seized wheat as it was subject to speedy and natural decay. The seized wheat had been purchased by the State Government on Government account at the procurement price and the sale proceeds were credited into the treasury. The petitioners challenged the teleprinter message dated March 31, 1981 and the Notification dated April 21, 1981 on the following grounds: (1) The Notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is an unreasonable restriction on the freedom of trader guaranteed under Article 19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same, i.e., 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary, irrational and irrelevant and thus violative of Article 14 of the Constitution; (3) the instructions conveyed by the State Government by its teleprinter message dated March 31, 1981, placing restrictions on movement of wheat by traders on private account from the State of U.P. to various other States and on inter district movement of wheat within the State, were violative of their fundamental rights under Article 19(1)(g) and Article 301 of the Constitution; (4) the seizure of the consignments of the wheat, while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without "the authority of law" and in violation of Article 300A of the Constitution; (5) the restriction must be by "law" or by an "order" having the force of law and not by recourse to the executive authority of the State under Article 162 of the Constitution, that is, by an executive action. The teleprinter message of the State Government dated March 31, 1981 on the basis of which the seizures were effected in truth and substance, had no legal sanction and cannot be construed to be a notified order within the meaning of sub section (1) read with sub section (5) of section 3 of the Essential Commodities Act; it was nothing but an executive direction. No executive action which operates to the prejudice of the citizens can be taken without the authority of law. The seizures effected were not in compliance with the instructions contained in the teleprinter message and not for breach of the two control Orders and, therefore, it was nothing but a "colourable exercise" of power. The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government without any legal sanction, since the farmers were not willing to sell their wheat at the procurement price; and (6) under sub section 2(ii) of section 6A of the Act there being no control price for wheat, the wheat should have been sold by public auction by the Additional District Magistrate while passing an interim order. Dismissing the petitions, the Court ^ HELD: 1:1. The restriction imposed by the State Government on wholesale dealers of wheat is neither arbitrary nor is of an excessive nature beyond what is required in the national interest. To check speculative tendencies of the wholesale traders and others who manipulate the market by withholding stocks of a commodity and to obviate blackmarketing, the stock limit of wheat was fixed for wholesale dealers at 250 quintals at a time, as in the case of a commission agent, the underlying idea being that the wholesale dealers should be allowed to 1139 continue their trading activities within reasonable limits. The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time, in stock, a wagon load of wheat. The words "at any time" mean "at any given time", which means that a wholesale dealer should not have in stock more than 250 quintals at a time. But there is nothing to prevent a wholesale dealer from entering into a series of transaction during the course of the day. [1173 A E] 1:2. The State Government had adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities. The Order fixing a stock limit introduces a system of checks and balances to achieve the object of the legislation, that is, to ensure equitable distribution and availability of essential commodities at fair prices. Looking to the prevailing conditions, the imposition of such restrictions satisfies the test of reasonableness. The fixation of such stock limit is not arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, intra vires of Article 14. The limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is also a reasonable restriction within the meaning of Article 19(6) of the Constitution. [1174 A D] 2:1. The teleprinter message No. PP 1061/XXIX.Food 5 dated 31st March, 1981 was in the nature of executive instruction of the State Government to the Regional Food Controllers of the various regions to be more vigilant and to secure due observance of the control orders. [1156 B, E F, 1163 C] 2:2. The instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are not a 'restriction ' or an 'intrusion ' on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or on the freedom of trade, commerce and intercourse under Article 301. These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another. Even if these requirements are considered to be a 'restriction ' on inter State or intra State trade, that is, across the State or from one part of the State to another, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of Article 19(1)(g) or Article 301 of the Constitution. There being no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one district to another within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned, the Petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are, therefore, free to carry on their business within the permissible limits, that is, they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals, at a time. [1174 D H, 1175 A B] 2:3. The teleprinter message dated March 31, 1981 was a direct sequel to the Centre 's directives contained in its earlier teleprinter message and intended or meant to achieve three main objectives, namely, (i) to provide price support in wheat to purchasers with a view to sustain, maintain and maximise the pro 1140 curement of wheat; (ii) to prevent hoarding and black marketing; and (iii) to provide for equitable distribution and availability of wheat at fair prices. The directions were obviously meant to subserve the object of the legislation and were in public interest. The State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat, there is nothing unusual on the State Government issuing such executive instructions. [1156 E F, 1160 D E] 2:4. Even assuming that the impugned teleprinter message is not relatable to the control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check post on the border and place restrictions on inter district movement of wheat by traders on private account within the State. [1156 E F] Ram Jawaya Kapur vs State of Punjab and Naraindas Indurkhya vs State of Madhya Pradesh & Ors., ; , explained and followed. The State Legislature is competent to enact a law on the subject covered by Entry 33, List III, regulating trade and commerce in, and the production, and supply and distribution of "foodstuffs". The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 73, List II, of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would not deprive the State Legislature of its jurisdiction thereunder. The executive power of the State which is coextensive with the legislative power is subject to the limitation contained in Article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union of authorities thereof. [1158 F H, 1159 A B] 3:2. The State in exercise of its executive powers is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the constitution of any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise the administration would come to a standstill. [1157 B C] 3:3. The executive power of "search and seizure" is a necessary concomitant of a welfare State. It tends to promote the well being of the nation. Many questions arising in the field of search and seizure are factual in nature, involving varying degrees of difference among the infinitely diverse facts. It is a limitless area where not only every factual variation presents a new constitutional question, but it is a peculiar field in which the decisions of courts do not help in clarifying the law. The decisions in the field are of little precedental value, because the more the cases that are decided the more issues arise, through possible factual variation. [1159 B E] 1141 4:1. The quintessence of the Constitution is the rule of the law. The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. [1161 A] State of Madhya Pradesh vs Thakur Bharat Singh, ; , Satwant Singh Sawhney vs Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., at 542; Smt. Indira Nehru Gandhi vs Shri Raj Narain, at 524, reiterated. The is a "law" within the meaning of Article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by Article 19(1)(g) and Article 301 of the Constitution. The object of the Act is to provide, in the interest of the general public for the control, production, supply and distribution of, and trade and commerce in, certain essential commodities. [1161 D E] 5. From the point of view either of Entry 54 List II or of Article 301 of the Constitution, the State Legislature is competent to set up the check posts and barriers on the State 's borders, designed and meant to prevent evasion of sales tax and other dues. Just as inter State trade and commerce must pay its way and be subject to taxation, persons engaged in inter state trade or commerce are equally subject to all regulatory measures. The check posts or barriers set up by the State Government under section 28 of the U.P. Sales Tax Act, 1948, which is legally accepted as valid and also considered not a restriction or impediment to the freedom of trade, commerce and intercourse granted under Article 301 of the Constitution, can certainly be utilised as a machinery for due observance of the laws, for example, for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States. B D] 6:1. The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights. The Court must balance the individual 's rights of freedom of trade under Article 19(1)(g) and the freedom of inter State trade and commerce under Article 301 as against the national interest. Such a limitation is inherent in the exercise of those rights. [1164 E H] 6:2. Under Article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause (6). [1165 A] 6:3. The expression "reasonable restriction" signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The test of reasonableness, wherever prescribed, should be applied to each individual 1142 statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality. [1165 B D] 6:4. Several steps taken, in the instant case, like prevention of movement of stock of wheat to various other States, movement of wheat from one district to another within the State only after the verification of the transaction and due endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned and also the physical verification at the check post on the State 's borders etc. were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State. The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation, and hence the steps taken were reasonable and in the interests of the general public. If, therefore, the seizure can be justified on the basis of any valid law, it cannot be held to be illegal. [1165 D H] 7:1. Article 301 imposes a limitation on all legislative power in order to secure that trade, commerce and intercourse throughout the territory of India shall be free. Although Article 301 guarantees that trade, commerce intercourse throughout the country shall be free, the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public. [1165 A, 1166 A, C] 7:2. The word 'free ' in Article 301 does not mean freedom from laws or from regulations. Article 301 guarantees freedom of trade, commerce and intercourse throughout the country from any State barriers. The whole object was to bring about the economic unity of the country under a federal structure, so that the people may feel that they are members of one nation. One of the means to achieve this object is to guarantee to every citizen in addition to the freedom of movement and residence throughout the country, which is achieved by Article 19(1)(d) and (e) is the freedom of movement or passage of commodities from one part of the country to another. This freedom of trade, commerce and intercourse throughout the country without any "State barriers" is not confined to inter State trade but also including intra State trade as well. In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between the State and another, but between any two points within the territory of India whether any State border has to be crossed or not. [1166 D H] 7:3. The regulatory measure or measures imposing compensatory taxes do not come within the purview of the restrictions contemplated by Article 301. The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse. [1166 H, 1167 A] 8:1. In view of the provisions of clause (3) of the 1976 Order read with clauses (4) & (6) of the 1978 Order, the validly seized excess stock of wheat lying with such dealer, that is, a wholesale dealer, commission agent or a retailer, in truth and substance, became their "unlicensed stock". Here, if really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, com 1143 mission agents or retailers in the State of Uttar Pradesh, as is alleged, it is possible to contend that there was a contravention of the provisions of clause (4) of the 1978 Order. The question whether the seizure was for any contravention of any order issued under section 3 of the Act has to be determined by the Additional District Magistrates (Civil Supplies), Agra, on the evidence adduced by the parties before him. The facts being controverted, the petitioners have no right to relief under Article 32 of the Constitution. [1168 D H, 1169 A B] 8:2. Supreme Court can neither act on documents which are yet to be proved nor can they pronounce upon the genuineness of the transactions covered by them or record any finding on the basis of the documents when the facts are in dispute. [1169 E] 8:3. Normally, it is not the function of Supreme Court to investigate into facts in proceedings under Article 32 of the Constitution when they are controverted with a view to discerning the truth. The matter must, in a situation like this, be left to the fact finding body. For the establishment of their right to relief under Article 32, the petitioners must establish the necessary facts before the said Additional District Magistrate in the proceedings under section 6A of the . If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure. [1171 A C] 9:1. The State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162 being subject to other provisions of the Constitution, is necessarily subject to Article 300A. [1169 F G] Wazir Chand vs The State of Himachal Pradesh, ; ; Bishan Das and Others vs The State of Punjab and Others, ; , referred to. The word 'law ' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State made law. [1169 G H] 9:3. The effect of the Constitution (Fourth) Amendment Act, 1955, is that there can be no 'deprivation ' unless there is extinction of the right to property. Here, no doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the Additional District Magistrate (Civil Supplies), Agra, that there was no contravention by them of an order issued under section 3 of the Act. It is true that the seizure was with intent to confiscate under section 6A of the Act, but that would not make the seizure illegal, if, ultimately, it is found that there was contravention of an order issued under section 3 of the Act. If the facts were not in controversy and if the petitioners were able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course of inter State trade and commerce from the Union Territory of Delhi, perhaps, they would be entitled to the return of the seized wheat, or, in the alternative, to the payment of price thereof. [1170 D H, 1171 A] 1144 9:4. The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government, and not for breach of the two Control Orders and, therefore, were nothing but a 'colourable exercise of power ', is dependent on facts to be found on investigation. Further, the question that there being no control price for wheat, the wheat should have been sold by public auction, is again a question that must be raised before the Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act. [1171 C D]

vil Appeal Nos. 5 135 15 (NT) of 1975. From the Judgment and Order dated 24.9.1973 of the Gujarat High Court in Income Tax Reference No. 31 of 1971. T.A. Ramachandran, Mrs. A.K. Verma and D.N. Mishra for the Appellant. C.M. Lodha, K.C. Dua and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by PATHAK, CJ. These appeals by certificate granted by the High Court of Gujarat are directed against the judgment of the High Court 722 answering the following question in favour of the Revenue and against the assessee: "Whether, on the facts and in the circum stances of the case, the income of the Society from ginning and pressing was exempt under section 81(i)(c) of the Income Tax Act, 1961, as it stood prior to its amendment on 1st April, 1968?" The assessee is a. co operative society constituted under the Cooperative Societies ACt. The objects of the society intend that it should press cotton and pack the bundles for its individual members as well as other custom ers, to Use its machinery for any useful work of its mem bers, and to sell raw cotton seeds and other agricultural products. The assessee possesses a ginning and pressing factory to cater to the needs of its members. It gets raw cotton from the members, and ginns and presses the cotton for marketing on behalf of its members. For rendering the services of ginning and pressing before selling the goods, the assessee charges the members a certain amount by way of ginning and pressing charges. It also charges commission for the sale of the finished product. In the course of assessment for the assessment years 1961 62 to 1963 64, the assessee claimed that the receipts from the ginning and pressing activities were exempt under section 81(i)(c) of the Income Tax (as it stood then). The In come Tax Officer, however, declined to accept the claim on the ground that the assessee had been carrying out the process of ginning and pressing with the aid of power. The Appellate Assistant Commissioner confirmed orders of the Income Tax Officer. In second appeal the Income Tax Appel late Tribunal held that having regard to the circumstance that the receipts were from members only, that there was a general market for ginning and pressing cotton only and no evidence appeared of any dealing in raw cotton, the ginning and pressing activities were to be regarded as an integral part of the marketing activity, and therefore the receipts from those activities were not liable to tax by virtue of section 81(i)(c). At the instance of the Revenue the Appellate Tribunal referred the question of law set out earlier to the High Court of Gujarat for its opinion. For the purpose of contention raised before the High Court, and again before us the following provisions of section 81 seem relevant: "81. Income of Co operative societies Income tax shall 723 not be payable by a co operative society (i) in respect of the profits and gains of business carried on by it, if it is (c) a society engaged in the marketing of the agricultural produce of its members; or (e) a society engaged in the process ing without the aid of power of the agricul tural produce of its members; or Provided that, in the case of a co operative society which is also engaged in activities other than those mentioned in this clause, nothing contained herein shall apply to that part of its profits and gains as is attributa ble to such activities and as exceeds fifteen thousands rupees. " The High Court proceeded on the view that if a Society carries on certain activities which are exempted activities according to cls. (a) to (f) of section 81(i) and certain other activities which are not exempted, the profits and gains attributable to such non exempted activities must necessari ly be taxed. The High Court observed that the assessee carried on ginning and pressing of cotton with the aid of power, and even if those activities are regarded as ancil lary or incidental to its marketing activity they would not come within the category of exempted activities in view of the proviso, and therefore they would have to be taxed. We find ourselves unable to accept the view taken by the High Court. It is apparent that the ginning, and pressing was part of the integral process of marketing. It was an activi ty incidental or ancillary to the marketing of the produce of its members. The ginning and pressing of the raw cotton was never regarded as a distinct process. When they deliv ered the raw cotton to the assessee for marketing, ginning and pressing was regarded as part of that process. The members did not take back the cotton after it was ginned and pressed. They paid only the costs of ginning and pressing. All the raw cotton s6 724 treated by the assessee was received from its members, and it was only such ' cotton of its members which was marketed by the assessee. The sale of the cotton was effected by the assessee to the outside world and not to its members. The object of section 81(i) was to encourage and promote the growth of cooperative societies, and consequently a liberal con struction must be given to the operation of that provision. The proviso to section 81(i) operates to exclude from the exemp tion those activities which can be regarded as separate and distinct from the activities enumerated in clauses (a) to (f) of section 81(i). If the activity in question is incidental or ancillary to one of the activities mentioned in those clauses, the proviso, in our opinion, will not apply. We may refer in this connection to the observations of the Karnata ka High Court in Addl. Commissioner of Income Tax, Karnataka vs Ryots Agricultural Produce Co operative Marketing Society Ltd., where reference has been made to the broad meaning of the expression 'marketing ' appearing in cl. (c) of section 81(i), and it has been explained that in order to make agricultural produce fit for marketing the activi ties involved in enabling that to be done must be regarded as involved in the activity of marketing itself. Reference may also be made to Commissioner of Income tax, Gujarat IV vs Karjan Co op. Cotton Sale, Ginning & Pressing Society Ltd., where the concept of 'marketing ' was given a meaning which included the ginning and pressing of raw cotton and was not confined to the selling activity alone. An attempt was made by learned counsel for the Revenue to raise the point that ginning and pressing into cotton bales changed the character of the cotton and therefore, what was marketed was not the agricultural produce of the members of the assessee. This point was not raised at any earlier stage by the Revenue and cannot be permitted to be taken now. We are of opinion that the assessee is entitled to the exemption of the profits and gains derived from the activity of the entire business of ginning and pressing of cotton and marketing it by virtue of cl. (c) of section 81(i) of the Income tax Act, and that the High Court erred in holding to the contrary. In the result the appeals are allowed and the question referred by the Income tax Appellate Tribunal to the High Court must be answered in the affirmative, in favour of the assessee and against the Revenue. The assessee is entitled to its costs. L S.S. Appeals allowed.

The assessee, a co operative society, was rendering the service of ginning and pressing raw cotton received from its members and marketing the finished product on their behalf. The assessee charged the members a certain amount by way of ginning and pressing charges and further charged commission for the sale of the finished product. For the assessment years 1961 62 to 1963 64, the assessee claimed that the receipts from the ginning and pressing activities were exempt under section 81(i)(c) of the Income Tax Act, 1961 (as it stood then) which provided that income tax shall not be payable by a co operative society in respect of the profits and gains of business carried on by it, if it was a society engaged in the marketing of the agricultural produce of its members. The Income Tax Officer declined to accept the claim on the ground that the assessee had been carrying out the process of ginning and pressing with the aid of power. The Appellate Assistant Commissioner confirmed the orders of the Income Tax Officer. The Appellate Tribunal allowed the second appeal of the assessee holding that the ginning and pressing activities were to be regarded as an integral part of the marketing activity. The High Court, while deciding the reference in favour of the Revenue, observed that the assessee carried on ginning and pressing of cotton with the aid of power, and even if those activities were regarded as ancillary or incidental to its marketing .activity, they would not come within the category of exempted activities in view of the proviso to the section. Allowing the appeals, this Court, HELD: (1) Ginning and pressing was part of the integral process of marketing. It was an activity incidental or ancillary to marketing, 721 which included the ginning and pressing of raw cotton and was not confined to selling activity alone. The members did not take back the cotton after it was ginned and pressed. All the raw cotton so treated was marketed by the assessee on behalf of its members to the outside world and not to its members. [723G H; 724A] Addl. Commissioner of Income Tax, Karnataka vs Ryots Agricultural Produce Co operative Society Ltd., ; Commissioner of Income Tax, Gujarat IV vs Karjan Co op. Cotton Sale, Ginning & Pressing Society Ltd., , referred to. (2) The object of section 81(i) of the Income Tax Act, 1961 was to encourage and promote the growth of co operative societies, and consequently a liberal construction must be given to the operation of that provision. [724A B] (3) The proviso to section 81(i) operates to exclude from the exemption those activities which can be regarded as separate and distinct from the activities enumerated in clauses (a) to (f) of section 81(i). If the activity in question is inciden tal or ancillary to one of the activities mentioned in those clauses, the proviso will not apply. [724B] (4) The assessee is entitled to the exemption of the profits and gains derived from the activity of the entire business of ginning and pressing of cotton and marketing it by virtue of cl. (c) of section 81(i) of the Incometax Act, and the High Court erred in holding to the contrary. [724F G]

: Criminal Appeal No. 279 of 1975. (From the Judgment and order dated 1.9.75 of the Madhya Pradesh High Court m M. P. No. 597 of 1975) and Criminal Appeals No. 355 356 of 1975. (From the judgment and order dated 12.11.1975 of the Allahabad Court in W.P. Nos 7428 and 6885 of 75) and Civil Appeal Nos. 1845 1849 of 1975 (From the Judgment and order dated 26.11.1975 of the Karnataka High Court in W. N. Nos. 3318, 4101, 4103, 4177 and 4178 of 1975) and Criminal Appeal No. 380 of 1975. (Appeal by Special Leave from the Judgment and order dated 31.10.1975 of the Delhi High Court in Criminal Writ No. 149/75) and Criminal Appeal No. 41 of 1976 (Appeal by Special Leave from the Judgment and order dated 19 11 1975 of Delhi High Court in Criminal Writ No. 158 of 149/75) and Criminal Appeal No. 41 of 1976 (Appeal by Special Leave from the Judgment and order dated 31 10.75 of the Delhi High Court in Criminal Writ No. 128/75) and Criminal Appeal No. 389 of 1975 (Appeal by Special Leave from the Judgment and order dated 5/ 6/8th Dec. 1975 of the Bombay High Court in Criminal Appln. Nos. 171, 95, 97, 99, 109, 115, 116 and 168/75) and Criminal Appeal No. 3 of 1976 (From the Judgment and order dated 12.12.1975 of the High Court of Rajasthan in D. B. Crl. Habeas Corpus petition No. 1606 of 1975) and Applicant/Interveners 1. Manek Ben (In, Crl. A. No. 279/75) 2. Maharaj Jai Singh (In Crl. A. Nos. 279, 355 356/75) 3. M/s. Surinder Mohan & Saraj Bhan Gupta (In Crl. A. Nos. 279 353 356/75) 4. Mr. V.K. Singh Chowdhry (In Crl. A. No. 355/75) 5. Mr. Deepchand Jain (In Crl. A, Nos. 355 356/75) 215 I. N. Shroff and H. section Parihar M. C. Nihalani, Adv. Genl., Ram Punjwani, Dy. Genl., for the state of Madhya Pradesh for the appellant, in Criminal Appeal No. 279/75. Shanti Bhushan, R. P. Goyal, section section Khanduja, B. R. Agarwala C. L. Sahu and R. N. Nath, for the respondent in Criminal Appeal No. 279 of 1975. section N. Kakar, Adv. Girdhar Malviya and o. P. Rana for the appellant State of U. P. in criminal appeals Nos. 355 356 of 1975. Soli J. Sorabjee, section section Khanduja, Mrs. K. Hingorani, K. N. Tripathi R. P. Goyal and Yatindra Singh for the respondent in Crl. A. No. 355/75. G. C. Dwivedi, section section Khanduja, Dr. N. M. Ghatate, R. P. Goyal, K. N. Tripathi and K .K. Jha, for the respondent in Crl. A. No. 356/75. For the applicant/lnterveners 1. Manek Ben M/s. section Venkataswami, C. section Vaidianatha, Hardev Singh and R. section Sodhi. Maharaj Jai Singh A. K. Sen, R. H. Dhebar, R. C. Bhatia and B. V. Desai 3. M/s. Surinder Mohan & Suraj Bhan Gupta M/s Sharad Manohar and R N. Nath 4. Mr. V. K. Singh Chowdhry Mr. Santokh Singh. Mr. Deepchand Jain M/s. Sharad Manohar and Amlan Ghosh Niren De, Attorney General for India, V. P. Raman, Addl Sol. General, R. N. Sachthey, Girish Chandra and section P. Nayar for the appellant in Civil Appeals Nos. 1846 1849/75 and 1926/75) Rama Joise, N. M. Ghatate and section section Khanduja for respondent in CA No. 1845/75 C. K Daphtary M. Veerappa N.M Ghatate Rama Joise, S.S. Khanduja Miss Lilly Thomas, Pramod Swaroop, M. Veerappa, section Balakrishnan Sharad Manmohan, M.K. Jain, Altaf Ahmed, R.P. Goyal, K.N. Tripathi, C.C. Dwivedi and Mrs. K. Hingorani for respondent in CA No. 1848/75. S.S. Khanduja for respondent in CA No. 1849 and R.I. 1926/75 K. N. Byra Reddy and Narayan Nettar for the appellant in CA No. 1926/75. V. M. Tarkunde, section K. Sinha, C. K. Ratnaparkhi, section K. Verma and M. P. Jha for respondent I in Criminal A. 380/75. 216 N. M. Qazi and M. N. Shroff, for the appellants in Criminal Appeal No. 380/75. N. M. Ghatate and section Balakrishnan for respondents 3 & 8 and 2, 4 7 in Cr. A. No. 380/75. section M. Jain for the appellant in Cr. A. No. 3/76. V. section Krishnan and A. V. M. Krishnan for respondent No. 2 in Criminal Appeal No. 3/76. Niren De, Attorney Genl., V. P. Raman, Addl. R. N. Sachthey, Girish Chandra, section P. Nayar and P. P. Rad (in Cr. A. No. 279/75 only) for the Attorney General in Crl. As No. 279 & 355 356/75) P. Ramchandra Reddy, Adv. and P. P. Rao for the State of Andhra Pradesh in Crl. 279, 355 356/7S. Mr. Balbhadra Prasad Singh and Mr. U. P. Singh for the state of Bihar in Crl. 279, 355 356/75. J. N. Kaushal, Adv. General, P. P. Rao and G. D. Gupta far the State of Haryana in Crl. A. No. 279/75. Bakshi Sita Ram, Adv. General, R. N. Sachthey and section P. Nayar for the state of Himachal Pradesh in Crl. 279, 355 356/75. O. K. Tikhu, Advocate General and Vineet Kumar for the state of Jammu and Kashmir in CA. 1845 1849 R. N. Byra Reddy, Advocate General and N. Nettar for the State of Karnataka in Crl. A. 279 and 1845/75. M. M. Abdul Khader, Advocate General and D. K. M. K. Nair for the State of Kerala in Crh As. 279, 35S 3S6/75. R. W. Adik Advocate General and D. R. Dhanuka and M. N. Shroff for the state of Maharashtra in Crl. 279, 355 356/75. J. section Wasu, Advocate General and O. P. Rana for the state of Punjab in Crl. 279, 355 356/75. A. V. Rangam and Miss A. Subhashini for the state of Tamil Nadu in Crl. 279, 355 356/75. section N. Kakar, Advocate General and J. M. Nanavati (O.P. Rana) for the state of Uttar Predesh in Crl. A. 279 and CA No. 1845 1849/75. J. M. Thakore, Advocate General, J. M. Nanavati, section K. Dholakia and R. C. Bhatia for the state of Gujarat in an appeals. The following Judgments were delivered: RAY, C.J. These appeals are by certificates in some cases and by leave in other cases. The state is the appellant, The respondents were petitioners in the High Courts. 217 The respondents filed applications in different High Courts for the issue of writ of habeas corpus. They challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of Emergency by the President under Article 352 of the Constitution made on 25 June, 1975. They challenged the legality and validity of the orders of their detention in all the cases. The State raised a preliminary objection that the Presidential order dated 27 June, 1975 made under Article 359 of the Constitution suspending the detenus right to enforce any of the rights conferred by Articles 14, 21 and 22 of the Constitution and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the resonants to invoke the jurisdiction of the High Court under Article 226 of the Constitution and to ask for writs of habeas corpus. The Judgment are of the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. The High Courts held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14,21 and 22 the High Courts can examine whether an order of detention is in accordance with the provisions of (hereinafter referred to as the Act), which constitute the conditions precedent to the exercise of powers thereunder excepting those provisions of the Act which are merely procedural or whether the order was necessary. The High courts also held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a person 's right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statue which form the conditions precedent to the exercise of power under the status as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary. The High Courts held that the, High Courts could not go into the questions whether the Proclamation of Emergency was justified or whether the continuance thereof was malafide. The High Courts did not decide about the validity of the 38th and the 39th Constitution Amendment Acts. The 38th Constitution Amendment Act amended Articles 123, 213, 239(b), 352, 356, 359 and 360. Broadly Stated the 38th Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground. As for Article 359 clause (1A) has been inserted by the 38th Constitution Amendment Act. The 39th Constitution Amendment Act amended Articles 71, 329. 329(A) and added Entries after Entry 86 in the Ninth Schedule. 218 No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for determination in these appeals. It is appropriate lo mention here that on 3 December, 1971 in exercise of powers conferred by clause (1) of Article 352 of the Constitution the President by Proclamation declared that a grave emergency exists whereby he security of India is threatened by external aggression. On 25 June, 1975 the President in exercise of powers conferred by clause (1) of Article 352 of the Constitution declared that a grave. emergency exists whereby the security of India is threatened by internal disturbances. On 27 June, 1975 in exercise of powers conferred by clause (1) of Article 359 the President declared that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on 3 December, 1971 and on 25 June, 1975 are both in force. The Presidential order of 27 June, 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause (1) of Article 359 of the Constitution. It should be noted here that on 8 January, 1976 there was a notification that in exercise of powers conferred by clause (1) article 359 of the Constitution the President declares that the right of any perh son to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcements the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of Article 352 of the Constitution on 3 December 1971 and on 25 June, 1975 are in force. The questions which fall for consideration are two . First, whether in view of the Presidential orders date 27 June, 1975 and 8 January, 1976 under clause (1) of Article 359 of the Constitution any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under the Act on the ground that the order of detention or the continued detention is for any reason not under or in compliance with the Act is maintainable. Second if such a petition is maintainable what is the scope or extent of judicial scrutiny particularly in view of the Presidential order dated 27 June, 1975 mentioning, inter alia, Article 22 of the Constitution and also in view of sub section (9) of section 16A of the Act. The Attorney General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of state assume importance. It has been recognised that times of grave national emergency demand grant of special power to the Executive Emergency provisions contained in Part XVIII including Articles 358, 219 359(1) and 359(1A) are constitutional imperatives. The validity of law cannot be challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 359(1). Similarly, if the Executive take any action depriving a person of a fundamental right mentioned in the Presidential order any not complying with the law such Executive action can not be challenged because such challenge would amount in substance to and would directly impinge on the enforcement of fundamental rights mentioned in the Presidential order. The reason given by the Attorney General behind e principle is that in times of emergency the Executive safeguards the life of nation. Challenge to Executive actions either on the ground that these are arbitrary or unlawful has been` negatived in England in Liversidge vs Anderson(l) and Greene vs Secretary of State for Home Affairs( ') and also by this Court in Sree Mohan Chowdhury vs the Chief Commissioner, Union Territory of Tripura(3) and Makhan Singh v, State of Punjab(4). The contentions of the respondents are as follows: The arguments on behalf of the state mean that during the emergency there is no right to life or liberty. Article 358 is more extensive as the fundamental right itself is suspended. The Presidential order under Article 359(1) does not suspend any fundamental right. Second, the object of Article 359(1) is to bar moving the Supreme Court under Article 32 for the enforcement of certain specified rights without affecting in any manner the enforcement of common law and statutory rights to personal liberty under Article 226 before the High Court. Third, Article 359(1) removes the fetter in Part III but does not remove the fetters arising from the principles of limited power of the Executive under the system of checks and balances based on separation of powers. Fourth, while the Presidential order operates only in respect of fundamental rights mentioned in the Presidential order it would not affect the rights of personal liberty at common law or under statute law or under natural law. Fifth, Article 359(1) is not to protect illegal orders of the Executive. The Executive cannot flout the command of Parliament relying on a Presidential older under Article 359(1). The suspension of fundamental right or of its enforcement cannot increase the power of the executive vis a vis the individual. Sixth, there is no reason to equate the state with the Executive. The suspension of the fundamental right or the right to enforce it has only this consequence that it enables the Legislature to make laws violative of the suspended fundamental rights and the Executive to implement such laws. The suspension of the fundamental right does not unable the Executive to flout legislative mandates and judicial decisions. (1) ; (2) (3) ; (4) [196414 Sr C. R. 797. 220 Seventh, the Executive can act to the prejudice of citizens only to the extent permitted by valid laws. The Proclamation of Emergency does not widen the Executive power of the state under Article 162 so as to empower the State to take any Executive action which it is not otherwise competent to take. Eighth, the right to arrest is conferred by the Act on the State and their officers only if the conditions laid down under section 3 of the Act are fulfilled. Therefore, if the conditions laid down under section 3 of the Act are not complied with by the detaining authority then the order of detention would be ultra vires the said Act. Ninth, Habeas corpus is a remedy not only for the enforcement of he right to personal liberty,, whether under natural law or a statute but is also a remedy for the enforcement of the principle of ultra vires viz., when the detaining authority has failed to comply with the conditions laid down in section 3 of the Act. In such a case the High Court has jurisdiction to issue a writ af haheas corpus for the enforcement of the principle of ultra vire.;. In England it was the practice in times of danger to the state to pass what were popularly known as Habeas Corpus Suspension Acts. Suspension did not legalise illegal arrest; it merely suspended a particular remedy in respect of particular offences. Accordingly it was the practice in England at the close of the period of suspension to pass an Indemnity Act in order to protect official concerned from the consequences of any incidental illegal acts which they might have committed under cover of the suspension of the prerogative writ. In England the Defence of the Realm Acts 1914 18 empowered the Executive to make regulations by order in Council for securing the public safety or for the defence of the realm. In The King vs Hallday Ex parte Zadiq(1) the House of Lords held that a regulation was valid which authorised the Secretary of state to detain a British subject on the grounds of his hostile origin or association. It was contended on behalf of Zadiq that there was no provision for imprisonment without trial. The substantial contention was that general words in a statute could not take away the vested right of a subject or alter the fundamental law of the Constitution because it would be repugnant to the Constitutional tradition of the country. The majority of the court swept aside these arguments and held that on the construction of the Act. the Executive had unrestricted powers. During the Second World War the Emergency Powers (Defence) Act, 1939 in England empowered the making of regulations for the detention of persons by the Secretary of state in the interests of the public safety or the defence of the realm, and for authority to enter and search any premises. Although access to the courts was not barred during the Second World War in England the scope for judicial review of executive action (1) ; 221 was limited. The courts could not consider whether a particular regulation is necessary or expedient for the purpose of the Act which authorised it. The question of necessity or expediency was one for the Government to decide. The court could, however, hold an act to be illegal as being not authorised by the regulation relied upon to Justify it. It was open to the subject in England to challenge detention by application for a writ of habeas corpus, but such application had little chance of success in view of the decision of the House of Lords in Liversidge 's case (supra). The House of Lords took the view that the power to detain could not be controlled by the courts, if only because considerations of security forbade proof of the evidence upon which detention was ordered. It was sufficient for the Home Secretary to have a belief which in his mind was reasonable. The courts would not enquire into the grounds for his belief, although apparently they might examine positive evidence of mala fides or mistaken identity. In Greece 's case (supra) the House of Lords held that a mistake on the part of the advisory committee in failing, as was required by the regulation, to give the appellant correct reasons for his detention did not invalid the detention order. It is noticeable how the same House expressed this view without any dissent. Dicey states that this increase in the power of the Executive is no trifle, but it falls far short of the process known in some foreign countries as ` 'suspending the constitutional guarantees" or in France as the proclamation or a State of siege '`. Under the Act of 1881 the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force. Under the Prevention of Crime (Ireland) Act, 1882 the Irish Executive was armed with extraordinary powers in the case of certain crimes to abolish right to trial by jury. The Act of Indemnity in England is a retrospective statute which frees persons who had broken the law from responsibility for its breach, and thus make acts lawful which when they were committed were unlawful. A Habeas Corpus Suspension Act does not free any person from civil or criminal liability for a violation of the law. The suspension, indeed, of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceeding against the Secretary of State. While the suspension lasts, he will not be able to get himself discharged from prison. If the prisoner has been guilty of no legal offence then on the expiration of the Suspension Act the Secretary of State and his subordinates arc liable to actions or indictments for their illegal conduct. Dicey stated that the unavowed object of a Habeas Corpus Suspension Act is to unable the Government to do acts which, though politically expedient may not he strictly legal. The Parliament which suspends one of the guarantees for individual freedom must hold that a crisis has arisen when the rights of individuals must be postponed to consideration or State. A Suspension Act would in facts fail of it. 222 main object, unless the officials felt. assured that, as long as they bonafide, and uninfluenced by malice or by corrupt motives, carried out the policy of which the Act was visible sign, they would be protected from penalties for conduct which, though it night be technically a breach of law, was nothing more than the free exertion for the public good of that discretionary power which the suspension of Habeas Corpus Act was intended to confer Upon the executive. The position in America is described in Cooley on the General Principles of Constitutional Law in the U.S.A. Fourth Edition. In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law. The suspension does not legalise what is doing while it continues. It merely suspends or the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them. Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency. Unsuitability of a court of law for determining matters of discretionary policy was referred to by Lord Parker in the Zamora(1) case and Lord Finlay in the Zadiq case (supra). In the Liversidge 's case (supra) it was held that the. court is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases. A court of law could not have before it the information on which the Secretary acts still less the background of statement and national policy what is and what must determine the action which he takes upon it. The Liversidge case (supra) referred to these observations in the Zadiq case (supra) "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plunder or enslavement". Liberty is itself the gift of the law and may by the law be forfeited or abridged. There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a think will happen. Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or (1) 223 people were otherwise murdered. Such instances are intend to produce a kind of terror and horror and are hortative in character. People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country. Quite often arguments are heard that extreme examples the given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality. The reffect of the Suspension of Habeas Corpus Acts and of Indemnity Acts in England has been to give every man security and confidence in periods of public danger or apprehension. Rarely, however, has this been suffered without jealousy, hesitation and remonstrance. Whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or Magistrate has been suffered to tamper with the law at his discretion. Where the Government believes the State be threatened by traitorous conspiracies during times of grave emergencies the rights of individuals of ordinary times become subordinate to considerations of the State. The pre eminent questions are four. First, is the Presidential order under Article 359 a bar at the threshold Second, is Article 21 the sole repository of right to the and personal liberty. Third is the Presidential order subject to the rubric of Rule of Law ? Fourth is section 16A(9) of the Act a rule of evidence ? The first question turns on the depth and content of the Presidential order. The vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental right. While a Proclamation of Emergency is in operation the Presidential order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights. The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 355 provides for indemnity where as Article 359(1) does not Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential order and is therefore much wider than Article 358 which includes Article 19 only. A person can enforce a fundamental right both in the case of law being made in violation of that right and also if the Executive acts in non compliance with valid laws or acts without the authority of law. It cannot be said that the scope of Article 359(1) is only to restrict the application of the Article to the Legislative field and not to the Acts of the Executive. The reason is that and enforcement of the fundamental rights mentioned in the Presidential order is barred 224 and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential order. The effect of the Presidential order suspending the enforcement of fundamental r right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right. The Constitution is the mandate. the Constitution is the rule of law. No one can arise above the rule of law in the Constitution. The decisions of this Court in Mohan Chowdhury 's (supra) case, Makhan Singh 's (supra) case and Dr. Ram Manohar Lohia vs State of Bihar & Ors (1) are that any court means all courts including this Court and high Courts and the right to initiate legal proceedings. A person can enforce fundamental rights in this Court under Article 32 as well as in the High Courts under Article 226. It is idle to suggest that the object of Article 359(1) is that the right to move this Court only is barred and not the right to move any High Court. Article 226 does not provide a guaranteed fundamental right like Article 32. This guaranteed right under Article 32 itself may be suspended by a Presidential order under Article 359(1). In such a case it could not be said that the object of the makers of the Constitution is that a person could not move this Court for the enforcement of fundamental rights mentioned in the Presidential order but could do so under article 226. the bar created by. Article 359(1) applies to petitions for the enforcement of fundamental rights mentioned in the Presidential order whether by way of an application under Article 32 or by way of any application under Article 226. [See Makhan Singh 's case (supra) and Ram Manohar Lohia 's case (supra)]. It is incorrect to say that the jurisdiction and powers of this Court under Article 32 and of the High Courts under Article 226 are virtually abolished by the Presidential order without any amendment of the Constitution. No amendment of the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential order takes away the locus standi of the detenus to move any court for the enforcement of fundamental rights for the time being the jurisdiction and powers of this Court and of the High Courts remain unaltered Article 359(1) is not directed against any court. It is directed against an individual and deprives him of his locus standi. The courts cannot either increase or curtail the freedom of individuals contrary to the provisions of the Constitution. The courts interpret the Constitution and the laws in accordance with law and judicial conscience and not emotion. It is wrong to say that the Executive has asked or directed any one not to comply with the conditions of the Act. The question is not whether the Executive should comply or should not comply with the Act but whether a detenu has a locus standi to move any court for a writ in the nature of habeas corpus of the ground of non compliance with the provisions of the Act. (1) ; 225 In period of public danger or apprehension the protective law which gives every man security and confidence in times of tranquility has to give way to interests of the State. The opinion in England has been that when danger is imminent, the liberty of the subject is sub ordinated to the paramount interests of the State. Ring leaders are seized and outrages anticipated. Plots are disconcerted, and the dark haunts of conspiracy filled with distrust and terror (See May Constitutional History of England, Vol. l, pp. 130 135). While the courts of law are in normal times peculiarly competent to weigh the competing claims of individuals and government they are in equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an emergency. Neither are they equipped, once an emergency has been recognised particularly a war emergency or emergency on account of security of the country being threatened by internal aggression to measure the degree to which the preservation of the life of the community may require governmental control of the activities of the individual. Jurists do not have the vital sources of information and advice which are available to the executive and the legislature; nor have they the burden of formulating and administering the continuing programme of the government, and the political responsibility of the people, which, though intangibles, are of crucial importance in establishing the content within which such decisions must be made. Article 359(1) makes no distinction between the threat to the security of India by war or external aggression on one hand and threat to the security of India by internal disturbance on the other. In fact, both situations are covered by the expression "grave emergency" in Article 352(1). Apart from Article 359(1) all provisions of the Constitution laying down the consequences of a Proclamation of Emergency under Article 352(1) would apply to both situations. The consequences of a Proclamation of Emergency under Article 352(1) of our Constitution are much wider than in England or America. Article 353 provides that the executive power of the Union shall extend to giving of directions to any State as to manner in which the executive power thereof is to be exercised. The exercise of such executive power by the Union totally displaces the provisions of Article 162. Non compliance with directions of the Union Executive under Article 353 by any State Executive may attract the provisions of Article 356 and the President 's Rule may be imposed on that State. In such an event, Parliament may, under Article 357(1) confer on the President the power of the Legislature of that State to make laws or to delegate such legislative power to any other authority. In such a situation, the federal structure and representative Government on which the Constitution is based may be completely changed in the State or States concerned. Article 250 provides that during the operation of Proclamation of Emergency Parliament may make laws with respect to any of the matters enumerated in the State list. The Federal Structure and representative government may suffer its full place in that situation. 17 833 SCI/76. 226 on the expiry of the operation of the Presidential order under Article 359(1), the infringement of the fundamental rights mentioned in the order, either by the legislative enactment or by an executive action, may be challenged in a court of law and if after such expiration Parliament passes an Act of Indemnity, the validity and the effect of such legislation may have to be scrutinised. [See Makhan Singh 's case (supra) at 813]. The provisions in our Constitution relating to emergence, are of wide amplitude. The Executive is armed with special powers because individual interests are subordinated to State security. If law is invalid vis a vis fundamental rights there cannot be any challenge during the operation of Articles 358 and 359 on the ground that law violates fundamental rights. It is contradictory to say that there can yet be challenge to orders under that law as being not in accordance with law. Article 19 is a prohibition against law. Article 19 has nothing to do with the Executive. Law under Article 21 can be punitive or preventive. In Article 22 reference is made to grounds and representation in cases of preventive detention. If enforcement of Article 22 is suspended one is left with Article 21. The Act in the present case is law. The Executive orders are under that law. Any allegation that orders are not under that law will not rob the orders of the protective umbrella of Article 359. The challenge by a detenu that law is broken will be enforcement of Article 21 because law contemplated under Article 21 is substantive as well as procedural law. A law can be broken either of substantive or procedural parts. Neither enforcement of nor relief to personal liberty is based on Article 19. No executive action is valid unless backed by law. In the present cases there is law authorising detention. In the present cases, the writs questioned the validity of detention. The Legislature under Article 358 is authorised to act in breach of Article 19. The executive can act only in terms of that law. If this is pre emergency law it has to satisfy Part III of our Constitution. If it is emergency law it can violate Article 19 because it is protected by Article 358. Under Article 359 the Presidential orders have been of two types. on 3 November, 1962 in exercise of powers conferred by clause (1) of Article 359 of the Constitution the President declared that "the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence of India ordinance 1962 or of any rule or order made thereunder". the 1975 Presidential order under Article 359(1) does not have the words "if such a person has been deprived of any such right under the Defence of India ordinance 1962 or any rule or order made thereunder". In other words, the 1962 Presidential order is limited to the condition of deprivation of rights under the Defence of India ordinance or any rule or order made thereunder whereas in the 1975 Presidential order no statute is mentioned. The illegality of orders was challenged in 227 Makhan Singh 's case (supra) in spite of the Presidential order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law. The decisions of this Court in Mohan Chowdhury 's and Makhan Singh 's cases (supra) are that during the operation of a Proclamation of emergency no one has any locus standi to move any court for the enforcement of any fundamental rights mentioned in the Presidential Order. The ratio must necessarily apply to Executive acts because Executive acts are challenged on the grounds of being contrary to law and without the authority of law. The submission of the respondents that a person in detention can come to a court of law in spite of the Presidential order under Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu 's challenge that the Act complained of is without authority of law or the challenge of the detenu that the provisions of the Legislative Act under which the detention has been made have not been complied with are all rooted in the enforcement of fundamental rights to liberty under Articles 21 and 22. If courts will in spite of the Presidential order entertain such applications and allow the detenus to enforce to start or continue proceedings or enforce fundamental rights. Article 359(1) will be nullified and rendered notice. This Court in Makhan Singh 's case (supra) said that if there was challenge to the validity of the detention order based on any right other than those mentioned in the Presidential order that detenu 's right to move any court could not be suspended by the Presidential order because the right was outside Article 359(1). This was explained by stating that if the detention was challenged on the ground that it contravened the mandatory provisions of the relevant Act or that it was malafide and was proved to be so, the bar of the Presidential order could have no application. This observation in Makhan Singh 's case (supra) is to be understood in the context of the question that arose for decision there. Decision on a point not necessary for the purpose of or which does not fall to be determined in that decision becomes an obiter dictum [See Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India(1). In Makhan Singh 's case (supra) the detention orders which were the subject matter of the judgment were orders made by the Executive under the Defence of India ordinance or Act and rules and orders made thereunder which was the express condition for detention in respect of which the Presidential order of 1962 under Article 359(1) applied. The Presidential order in the present case is on the face of it an unconditional order and as such there is the vital and telling difference between the effect of the Presidential order of 1962 and the present Presidential order. It is obvious that the Government fully conscious of the Presidential order of 1962 and its effect as determined by the decisions of this Court in Makhan Singh 's case (supra) and subsequent (1) at pp. 97 98, 193 194. 228 cases deliberately made the present Presidential order an unconditional order under Article 359(1). Reference may be made to State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr.(1) which clearly pointed out that the Presidential order of 1962 was a conditional one and therefore if a person was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in that regard would not be suspended The decision of this Court in Pandurang 's case (supra) is by the Constitution Bench of five learned Judges, three of whom were on the Constitution Bench of seven learned Judges deciding Makhan Singh 's case (supra). In Pandurang 's case (supra) the ratio was that if a personal was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in that regard was not suspended It, therefore, follows from the decisions in Pandurang 's case and Makhan Singh 's case (supra) that the ratio in both the cases was that the 1962 Presidential order being a conditional one the enforcement of rights under Articles 21 and 22 was suspended only to the extent of the conditions laid down in the Presidential order and the suspension could not operate in areas outside the conditions. There is no aspect whatever. Of any condition in the present Presidential order. Therefore, the decisions in Makhan Singh 's case (supra) and subsequent cases following it have no application to the present cases where the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22. The conclusion for the forging reasons is that the Presidential order is a bar at the threshold. The heart of the matter is whether Article 21 is the sole repository of the right to personal liberty. If the answer to that question be in the affirmative the Presidential order will be a bar. The contentions of the Attorney General are two fold. First, the legal enforceable right to personal liberty for violation thereof by the Executive is a fundamental right conferred by the Constitution and is embodied in Article 21. Second, apart from Article 21 the right to personal liberty against the Executive is neither a common law right nor a statutory right nor a natural right. He relies on three decisions. The earliest is Girindra Nath Banerjee vs Birendra Nath Pal(2). The others are King Emperor vs Sibnath Banerjee(3) and Makhan Singh 's case (supra). In the first two decisions it has been held that the right to habeas corpus is only under section 491 of the Code of Criminal Procedure. In Makhan Singh 's case (supra) it has been said that this right under section 491 became embodied in Article 21. The statutory right under section 491 of the Code of Criminal Procedure has been deleted from the new Code of Criminal Procedure which came into effect on 1 April, 1974. (1) ; (2) I. L,. R. (3) 72 I. A. 241 229 The arguments on behalf of the respondents are that the right to life and personal liberty is not only in Article 21 but also under common law and statutes for these reasons. The right to personal liberty is contained in Articles 19, 20 and 22, and, therefore, Article 21 is not the sole repository to personal liberty. The respondents rely on the decision is Rustom Cavasjee Cooper vs Union of India(1) where it was said that the ruling in A. K. Gopalan vs the State of Madras(2) that Articles 19 and 22 are mutually exclusive no longer holds the field. The respondents also rely on the decisions if Shombhu Nath Sankar vs The state of West Bengal & Ors.(1), Haradhan Saha & Anr. vs The State of West Bengal & Ors.(4) and Khudiram Das vs The State of West Bengal & Ors.(5) in support the proposition that these decisions followed the ruling in the Bank Nationalisation case (supra). The respondents contend that the Presidential order bars enforcement of rights under Articles 14, 19, 21 and 22 but it is open to the respondents to enforce violation of right under Article 20. The other reasons advanced by the respondents are dealt with hereinafter. The majority view in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala(6) is that there are no natural rights. fundamental rights in our Constitution are interpreted to lie what is commonly said to be natural rights. The only right the life and liberty is enshrined in Article 21. In A. K. Gopalan 's case (supra) it has been said that to read law as meaning natural law is to lay down vague standards. Law means law enacted by the State. Law must have some firmness. Law means positive State made law. Article 21 has been interpreted in A. K. Gopalan 's case (supra) to include substantive as well as procedural law in the phrase "procedure established by law". The reason is obvious. A law providing for procedure depriving a person of liberty must be a law made by statute. P. D. Shamdasani vs Central Bank of India Ltd.(7) held that Article 21 is prohibition against unauthorised executive action. In Shrimati Vidya Verma through next friend R. V. section Mani vs Dr. Shiva Narain Verma(8) law in Article 21 has been held in mean State made law. In Makhan Singh 's case (supra) it was decided that during the subsistence of the Presidential order suspending the enforcement of fundamental rights neither a petition under Article 32 nor a petition under Article 226 could be moved invoking habeas corpus. An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot similarly be moved in the High Court. Part III of our Constitution confers fundamental rights in positive as well as in negative language. Articles 15(1), 16(1), 19, 22(2). (1) ; (2) (3) ; (4) ; (S) ; (6) [1973] Supp. section C. R. 1. (7) ; (8) ; 230 22(5), 25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in positive language. Articles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are in negative language. It is apparent that most categories of fundamental rights are in positive as well as in negative language. A fundamental right couched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasise the immunity from State action as a fundamental right. [See The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and ors (1) ] These fundamental rights conferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the texture of Basic Human Rights (See A. K. Gopalan 's case (supra) at pp. 96 97, 248, 249, 293 and Bank Nationalisation case (supra) at pp. 568 71, 576 78). Article 31(1) and (2) subordinate the exercise of the power of the State to the concept of the Rule of Law enshrined in the Constitution. (See Bank Nationalisation case (supra) at p. 568). Similarly Article 21 is our Rule of Law regarding life and liberty. No other rule of law can have separate existence as a distinct right. The negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right. The limitation and guarantee are complementary. The limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual. Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in Article 19(1)(d). (see Kharak Singh vs State of U.P. & Ors.(2). The Bank Nationalisation case (supra) merely brings in the concept of reasonable restriction in the law. In the present appeals, the Act is not challenged nor can it be challenged by reason of Article 358 and Article 359(1A) and the Presidential order mentioning Article 19 as well. If any right existed before the commencement of the Constitution and the same right with its same content is conferred by Part III as a fundamental right the source of that right is in Part III and not in any pre existing right. Such pre Constitution right has been elevated by Part III as a fundamental right. The pre existing right and the fundamental right have to be grouped together as a fundamental right conferred by the Constitution. See Dhirubha Devisingh Gohil vs The State of Bombay(3). If there is a pre Constitution right which is expressly embodied as a fundamental right under our Constitution, the common law right has no separate existence under our Constitution. (See B. Shanknra Rao Badami & Ors. vs State of Mysore & Anr.(4). If there be any right other than and more extensive than the fundamental right in Part III, such right may continue to exist under Article 372. (1) at 988 89. (2) [1964] 1 section C. R. 332. (3) ; at 693 97. (4) [19691 3 section C. R. 1 at 11 13 231 Before the commencement of the Constitution the right to personal liberty was contained in Statute law, e.g. the Indian Penal Code, the Criminal Procedure Code as also in the common law of Torts. In the event of any wrongful infringement of the right to personal liberty the person affected could move a competent court by way of a suit for false imprisonment and claim damages. Suits for false imprisonment are one of the categories of law of Torts. The common law of Torts prevailed in our country before the Constitution on the basis of justice, equity and good conscience. (See Waghela Rajsanji vs Shiekh Masludin & Ors.(1) Satish Chandra Chakravarti vs Ram Doyal Deo and Baboo s/o Thakur Dhobi vs Mt. Subanshi w/o Mangal Dhobi(3). This principle of justice, equity and good conscience which applied in India before the Constitution is generally known as the English Common Law. Apart from the law of Torts, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution. After the amendment of section 491 of the Code of Criminal Procedure in 1923, the right to obtain a direction in the nature of a habeas corpus became a statutory right to a remedy in India. After 1923 it was not open to any party to ask for a writ of habeas corpus as a matter of common law. (See Makhan Singh 's case (supra) at pp 818 19; District Magistrate, Trivandrum vs K. C. Mammen Mappillai(4), Matthen vs District Magistrate, Trivandrum(5), Girindra Nath Banerjee 's case (supra) and Sibnath Banerjee 's case (supra). The provisions of section 491 of the Criminal Procedure Code have been repealed recently as being superfluous in view of Article 226. (See 41st Report of Law Commission of India (Vol.1) p. 307). The present appeals arise from petitions filed in High Courts for writs in the nature of habeas corpus. The statutory right to remedy in the nature of habeas corpus under section 491 of the Criminal Procedure Code cannot be exercised now in view of the repeal of that section. Even if the section existed today it could not be exercised as a separate right distinct from the fundamental right, the enforcement of which is suspended by the Presidential order as was held by this Court in Makhan Singh case (supra) at pp. 818 825. There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under Article 372. Law means enacted law or statute law. (See A. K. Gopalan 's case (supra) at pp. 112, 199, 276, 277, 288, 307, 308, 309, 321, 322). It follows that law in Article 21 will include all post constitutional statute law including the Act in the present case and by virtue of Article 372 all pre constitutional statute law including the Indian Penal Code and the Criminal Procedure Code. The expression "procedure established by law" includes substantive as well as procedural law. (See A. K. Gopalan 's case (supra) at p. 111 and section Krishnan & ors. vs The State of Madras(6). It means (1) 14 I. A 59 at 96. (2) I.L.R. at 407 10, 425. (3) A.I.R. 1942 Nag. (4) I.L.R. (5) L.R. 66 I.A. 222. (6) ; at p. 639. 232 some step or method or manner of procedure leading upto deprivation of personal liberty. A law depriving a person of personal liberty must be a substantive and procedural law authorising such deprivation. It cannot be a bare law authorising deprivation of personal liberty. The makers of the Constitution had the Criminal Procedure Code in mind. The repealed Criminal Procedure Code as well as the present Criminal Procedure Code has substantive as well as procedural provisions. The 13 substantive as well 35 the procedural parts in a law depriving a person of personal liberty must be strictly followed. There is no distinction between the expression "save by authority of law" in Article. 31(1) and the expression "except by authority of law" in Article 265. Laws under Article 31(1) must lay down a procedure containing reasonable restrictions. Law under Article 265 also lays down a procedure. Therefore, there is no difference between the expression "except according to procedure established by law" in Article 21 and the expression "save by authority of law" in Article 31(1) or the expression "except by authority of law" in Article 265. When Article 21 was enacted it would be a blunder to suggest that the founding fathers only enshrined the right to personal liberty according to procedure and not frame the constitutional mandate that personal liberty could not be taken except according to law. The Attorney General rightly submitted at the outset that Article 21 confers a fundamental right against the Executive and law in that Article means State law or statute law. In the present appeals, the respondents allege that section 3 of the Act has not been complied with. In the present appeals the Act is not challenged nor can it be challenged on the ground of infringement of Article 19 by reason of Articles 358, 359(1) and the Presidential order. It has been pointed out earlier that non compliance with the provisions of the Act cannot be challenged as long as the Presidential order is in force. Article 20 states that no person shall be prosecuted and published for the same offence more than once. The present appeals do not touch any aspect of Article 20. The reason why reference is made at this stage to Article 20 is to show that Article 20 is a constitutional mandate to the Judiciary and Article 21 is a constitutional mandate to the Executive. The respondents contend that "State" in Article 12 will also include the Judiciary and Article 20 is enforceable against the Judiciary in respect of illegal orders. The answer is that Article 20 is a prohibition against the Judiciary in the cases contemplated there. If a person is detained after the Judiciary acts contrary to the provision, in Article 20 such detention cannot be enforced against the Judicially. In the event of the Judiciary acting contrary to the provisions in Article 20 such, detention can be challenged by moving the court against the Executive for wrongful detention or conviction or punishment as the case may be. The expression "No person shall be prosecuted for the same offence more than once" in Article 20 would apply only to the Executive The decision in Makhan Singh 's case (supra) is that fundamental rights cannot be enforced against the Judiciary in case of illegal 233 orders. The decision in Ram Narayan Singh vs The State of Delhi & Ors.(1) is no authority for the proposition that fundamental rights can be enforced against the Judiciary. This Court held that the detention of Ram Narayan was illegal because Ram Narayan was being detained without any order of remand by the Magistrate. In Ram Narayan 's case (supra) there was no aspect of the bar. under Article 359. It is not correct to say that the suspension of fundamental rights or of their enforcement can increase the power of the Executive. The effect of suspension or enforcement of fundamental rights is that an individual cannot move any court for the enforcement of his fundamental right to personal liberty for the time being;. Reference to Articles 256, 265 and 361 has make by the respondents to show that Article 21 is not the repository of rights to life and liberty. These references arc irrelevant. Article 256 do. not confer any right on any person. It deals with relations between the Union and the State. Article 265 has nothing to do with right to personal liberty. Article 361 (3) refers to the issue of a process from any court which is a judicial act and not any Executive action. In any event, these Articles have not relevance in the present appeals. Reference was made by the respondents to an accused filing appeal relating to criminal proceedings to show that Article 21 is not the sole respository of right to life and liberty. In a criminal proceeding the accused defends himself against the accusation of an offence against him. He does not move any court for the enforcement of his fundamental right of personal liberty. In an appellant against the order of conviction the accused challenges the correctness of the judicial decision. An appeal or revision is a continuation of ' the original proceeding. (See Garikapatti Veeraya vs N. Subbiah Choudhury(2) and Ahmedabad Mfg. & Calico Pvt. Co. Ltd. vs Ram Tahal Ramnand & Ors.(3). The respondents posed the question whether a decree given against the Government could be enforced because of the Presidential order. This is irrelevant. However, a decree conclusively determines the rights of the parties in the suit and after a decree is passed the right of the decree holder is not founded on the right which is recognised by the decree but on the decree itself. This right arising from a decree is not a fundamental right, and, therefore, will not be prima facie covered by a Presidential order under Article 359(1). The other examples given by the respondents are seizure of property by Government, requisition by Government contrary to Articles 31 and 19(1) (f). If any seizure of property is illegal or in acquisition or requisition is challenged it will depend upon the Presidential order to find out whether the proceedings are for the enforcement of fundamental rights covered by the Presidential Order (1) ; (2) ; (3) ; 234 Fundamental rights including the right to personal liberty are enforced by the Constitution. Any pre Constitutional rights which are included in Article 21 do not after the Constitution remain in existence which can be enforced if Article 21 is suspended. If it be assumed that there was any pre constitutional right to personal liberty included in Article 21 which continued to exist as a distinct and separate right then Article 359(1) will be an exercise in futility. In Makhan Singh 's case (supra) there was not suggestion that apart from Article 21 there was any common law or pre Constitution right to personal liberty. The theory of eclipse advanced on behalf of the respondents is untenable. Reliance was placed on the decision in Bhikaji Narain Dhakras & Ors. vs The State of Madhya Pradesh & Anr.(1). The theory of eclipse refers to pre constitutional laws which were inconsistent with fundamental right. By reason of Article 13 (1) such laws could not become void but became devoid of legal force. Such laws became eclipsed for the time being. The theory of eclipse has no relevance to the suspension of the enforcement of fundamental rights under Article 359 (1) . The constitutional provisions conferring fundamental rights cannot be said to be inconsistent with Article 13 (1) . Article 21 is not a common law right. There was no pre existing common Law remedy to habeas corpus. Further, no common law right which correspond 's to a fundamental right can exist as a distinct right. apart from the fundamental right. See Dhirubha Devisingh Gohil 's vs The State of Bombay (supra) and B. Shankar Rao Badami 's , case (supra). In Gohil 's case (supra) the validity of the Bombay Act of 1949 was challenged on the ground that it took away or abridged fundamental rights conferred by the Constitution. The Act was held to be beyond question in view of Article 31 B which had been inserted in the Constitution by the First Amendment and the Act being mentioned as Item 4 of the 9th Schedule. It was said that one of the rights secured by Part III of our Constitution is a right that the property shall be acquired for a public purpose and under a law authorising such acquisition and providing for compensation. That is also the very right which was previously secured to a person under section 299 of the Government of India Act, 1935. is Court said that what under the Government of India Act was a provision relating to the competency of the Legislature, was also clearly in the nature of a right of the person affected. The right under Article 299 which was pre existing, became along with other fundamental rights for the first time secured by our Constitution when grouping them together as fundamental rights. The respondents gave the example that although section 12(2) of the Act makes it obligatory on the Executive to revoke the detention order and if the Executive does not do so such Executive action will amount to non compliance with the Act. Here again, the detenu (1) ; 235 cannot enforce any statutory right under the Act for the same reason that it will amount to enforce his fundamental right to personal liberty by contending that the Executive is depriving him of his personal liberty not according to "procedure established by law". Similarly, the example given of an illegal detention of a person by a Police officer will be met with the same plea. An argument was advanced on behalf of the respondents that if n pre existing law is merged in Article 21 there will be conflict with Article 372. The expression "law in force" in Article 372 cannot include laws which are incorporated in the Constitution viz., in Part III. The expression "law" in Articles 19(1) and 21 takes in statute law. The respondents contended that permanent law cannot be repealed by temporary law. The argument is irrelevant and misplaced. The Presidential order under Article 359(1) is not a law. The order does not real any law either. The suggestion that Article 21 was intended to afford protection to life and personal liberty against violation lay private individuals was rejected in Shamdasani 's case (supra) because there cannot be any question of one private individual being authorised by law to deprive another of his property or taking away the life and liberty of any person by procedure established by law. The entire concept in Article 21 is against Executive action. In Vidya Verma 's case (supra) this Court said that there is no question of infringement of fundamental right under Article 21 where the detention complained of is by a private person and not by a State or under the authority or orders of a State. The Act in the present case is valid law and it has laid down procedure of applying the law. The validity of the Act has not been challenged and cannot be challenged. The Legislature has competence to make the law. The procedure? therefore. cannot be challenged because Articles 21 and 22 cannot be enforced. The suggestion of the respondents that the power of the Executive is widened is equally untenable. The suggestion on behalf of the respondents that the right to private defence is available and if any one resorted to private defence in resisting detention there might be civil war is an argument to excite emotion. If there are signs of civil wars as the respondents suggestion, it is for the Government of our country to deal with the situation. It is because of these aspects that emergency is not justifiable because no court can have proper standard to measure the problems of emergency in the country. If any person detained finds that the official has the authority to arrest him no question of resistance arises and if there is no authority the same cannot be challenged during the operation of the Presidential order but the person shall have his remedy for any false imprisonment after the expiry of the Presidential order. The respondents submitted that if Article 21 were the repository of a right to personal liberty it would mean that Article 21 destroyed pre existing rights and then made a fresh grant. There is no 236 question of destruction of any right. Our fundamental rights came into existence for the first time under the Constitution. The fact that section 491 of the old Criminal Procedure Code has been abolished in the new Code establishes that the pre existing right was embodied as a fundamental right in the Constitution. The right to personal liberty because identified with fundamental right to personal liberty under Article 21. The third question is whether Rule of law overrides the Presidential Order. The Presidential Order does not alter or suspended any law. The Rue of law is not a mere catchword or incantation. Rule of Law is not a law of nature consistent and invariable at all times and in all circumstances. The certainly of law is one of the elements in the concept of the Rule of law but it is only one element and taken by itself, affords little guidance. The essential feature if Rule of law is that the judicial power of the state is to a large extent, separate from the Executive and the Legislature. The Rule of Law us a normative as much as it is a descriptive term. It expresses an ideal as much as a juristic fact. The Rule of Law is nit identical with a free society. If the sphere of the Rule of Law involves what can be called the "Existence of the Democratic system" it means two things. In the first place the individual liberties of a democratic system involves the right of the members of each society to choose the Government under the which they lie. In the second place come freedom of speech, freedom of assembly and freedom f association. These are not absolute tights, Their exceptions are justified by the necessity if reconciling the claims of different individuals to those rights, The criterion whereby this reconciliation an be effected is the concern of law to ensure that the status and dignity of all individuals is to the greatest possible extent observed. Freedom of speech may be limited by conception as clear present danger", attack, on the free democratic order". The institutions and procedures by which the fundamental regard for the status and dignity of the human person an be effected is that rights and remedies are complimentary to the other, The phrases such as "equality before law" or "equal protection of the laws: are in themselves equivocal. The supremacy of the law means that the faith of civil liberty depends on the man who has to administer civil liberty much more than on any legal formula. Aristotle, pointed out that the rigid certainty of law is not applicable to all circumstances. this plea would be echoed by the modern administrator called upon to deal with the ever changing circumstances of economic and social life of the nation. The respondents contend that all executive actions which operate to the prejudice of any person must have the authority of law to support it. Reliance is placed on the decisions in Rai Sahib Ram Jawaya Kapur Ors. vs The State of Punjab(1) M.P State vs Bharat Singh (2) Collector vs Ibrahim & Co. (3), Bennet Coleman & Co. vs Union of (1) (2) ; (3) 237 India(1) and Meenakshi Mills vs Union of India(2). This is amplified by the respondents to mean that the Executive cannot detain a person otherwise than under any legislation and on the suspension of Article 21 or the right to enforce it, the Executive cannot get any right to act contrary to law. The Executive cannot detain a person otherwise than under valid legislation. The suspension of any fundamental right does not effect this rule of the Constitution. In normal situations when there is no emergency and when there is no Presidential order of the type like the present tile situation is different. In Bharat Singh 's case (supra) this Court was concerned with the pre emergency law and an order of the Executive thereunder. It was held that the pre emergency law was void as violative of Article 19, and, therefore, such a law being pre emergency law could not claim the protection under Article 358. The ratio in Bharat Singh 's case (supra) is this: Executive action which operates to the prejudice of any person must have the authority of law to support it. [See also Ram Jawaya Kapur 's case (supra). The provisions of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or Executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of our Constitution. Article 358 permits an Executive action under a law which may violate Article 19 but if the law is void or if there be no law at all, the Executive action will not be protected by Article 358. Bharat Singh 's case (supra) considers the effect of Article 358 so far the Executive action is concerned, but was not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359 (1) . Ibrahim 's case (supra), the Bannett Coleman case (supra) and the Meenakshi Mill 's case (supra) follow Bharat Singh 's case (supra) regarding the proposition that the terms of Article 358 do not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law. The ratio in Bharat Singh 's case (supra) is that the Madhya Pradesh Public Security Act was brought into force before the Emergency Article 358 empowers the legislature to make a law violating Article 19. Article 358 does not mean that a pre emergency law violating Article 19 would have constitutional validity during the period of emergency. The Executive action which was taken during the emergency on the basis of the pre emergency law did not have the authority of law inasmuch as the Madhya Pradesh Act of 1959 was a void law where it was enacted in violation of Article 19. In Ibrahim 's case (supra), is the Sugar Control order 1963 permitted allocation of quotas of sugar. The State Government ordered that the sugar allocated to the two cities of Hyderabad and Secunderabad were entirety to be given to the Co operative Stores. Under Article (1) [1973] 2 section C. R .757. (2) 238 358 the respondents there could not challenge an Executive action which, but for the provisions contained Article 19, the State was competent to take. But the Executive order there was one which had the effect canceling the licenses of the respondents which could be done only after an enquiry according to the procedure prescribed in the order. The Executive order there was contrary to the provisions contained in the Sugar Control order. In other words, the Executive action which was in breach of the order could not be immune from attack under Article 358. In the Bennet Coleman case (supra) it was said that the Newsprint Control order could not authorise the number of pages. In the Meenakshi Mill case (supra) it was said that the Yarn Control order could not be resisted on the ground that it had no direct impact on the rights of the mills. In these four cases referred to there was no question of enforcement of fundamental right mentioned in the Presidential order. These four cases were not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359. The suspension of right to enforce fundamental right has the elect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of law other than the constitutional rule of law. There cannot be any pre Constitution or post Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency. The respondents relied on the decision in Eshugbayi Eleko vs officer Administering the Government of Nigeria(1) support of the proposition that Rule of Law will always apply even when there is Presidential order. It has to be realised that the decision in Eshuqbavi Eleko cannot over reach our Constitution. Article 358 does not permit the Executive action to have the authority of law. Article 359 prevents the enforcement of the fundamental rights mentioned in the Presidential order. It bars enforcement against any legislation or executive! action violating a fundamental right mentioned in the Presidential order. The principle in Eshugbayi Eleko 's case (supra) will not apply where Article 359 is the paramount and supreme law of the country. There is no question of amendment of the concept of rule of law or any suggestion of destruction of rule of law as the respondents con tended because the Presidential order under Article 359 neither nullifies nor suspends the operation of any law. The consequence of the Presidential order is of a higher import than the suspension of any law because the remedy for the enforcement of fundamental rights is barred for the time being because of grave emergency. (1) ; 239 The respondents contend that if an individual officer acts outside his authority, it will be an illegal act and the High Court under Article 226 can deal with it. Reliance is placed on the English decision in Christie & Anr. vs Leachinsky(1) in support of the proposition that the action of an individual officer will be an Executive action when he acts within the scope of his authority. , The decision in Leachinsky 's case (supra) is an action for false imprisonment and damages against two persons of Liverpool City Police for wrongfully arresting a person without informing that person of the grounds for arrest. That case has no relevance here. An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order . Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21, namely, deprivation of personal liberty. The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21. If such an obligation is not performed, the violation is of Article 21. It will mean that the right of the person affected will be a violation of fundamental right. The expression "for any other purpose" in Article 226 means for any purpose other than the enforcement of fundamental rights. A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal. An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action. Section 18 of the Act has been argued by the respondents to mean that a malafide order of detention cannot be regarded as an order made under the Act. Section 18 has also been challenged to suffer from the vice of excessive delegation. Section 18 has been amended by the words "in respect of whom an order is made or purported to be made under section 3" in substitution of the words "detained under this Act". The result is that no person in respect of whom and order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any. It has been earlier held that there is no natural law or common law right to habeas corpus. The respondents rely on the decisions in Poona Municipal Corporation vs D. N. Deodher(2), Kala Bhandar vs Munc. Committee(3), Indore Municipality vs Niyamatulla(4) and Joseph vs Joseph(5) in support of the proposition that the expression "purports" means "has the effect of". The respondents contend that (1) ; (2) ; (3) ; (4) A. I. R. (5) 240 Section 18 of the Act can apply only when a valid order of detention is made. If the section be interpreted to include malafide orders or orders without jurisdiction then it is said that such interpretation will prevail upon the judicial power and violate Article 226. The expression "purported to be done" occurs is section 80 of the Code of Civil Procedure. The expression "purported to be made under section 3 of the Act" in section 18 will include an executive act made by the District Magistrate within the scope of his authority as District Magistrate, even if the order is made in breach of the section or is mala fide. (See Hari Singh vs The Crown(1) Bhagchand Dagadusu vs Secretary of State for India(2), Albert West Meads vs The King(3), Anisminic vs Foreign Compensation etc.(4) and Dakshina Ranjan Ghosh vs Omar Chand Oswal(5). As long as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under section 3 of the Act. The section applies to any person in respect of whom an order as been made or purported to be made. There is no question of excessive delegation. Section 18 of the Act lays down the law. Section 18 of the Act is only an illustration of an application of the act by the officers authorised by the Act. Section 18 identifies the person to whom it applies and in what cases it applies to such a person. The word "purport" covers acts alleged to be malafide. The decisions to which reference has been made indicate that the acts whatever their effect be are all acts made or purported to be made under the Act. A contention is advanced by the respondents that section 18 of the Act will apply only to post detention challenge. This is wrong. Sec lion 18 applies to all orders of detention. Counsel on behalf of the respondents submitted that the High Courts had only heard the matters on preliminary points and not on the area of judicial scrutiny, and, therefore, this Court should not express any view on the latter question. There are three principal grounds why this Court should express views. First. The Bombay High Court (Nagpur Bench) has read down section 16A(9) of the Act. One of the appeals is from the judgment of the Bombay High Court (Nagpur Bench). This judgment directly raises the question of section 16A(9) of the Act. Second. The Additional Solicitor General made his submissions on this part of the case and all counsel for the respondents made their submissions in reply. Considerable time was spent on hearing submissions on both sides. Time of the Court is time of the nation. Third. It is only proper that when so much time has been taken on these questions this Court should express opinions and lay down areas for judicial scrutiny. (1) (2) L. R. 54 I. A. 338 at 352. (3) A.I.R. 1948 P, C. 156 at 157_59 (4) ; at 212 13. 237. (5) I. L. R. at 995 1003. 241 The respondents contend that if the Presidential order does not bar the challenge on the ground that the orders are malafide or that the orders are not made in accordance with the Act the non supply of grounds will not affect the jurisdiction of the Court. It is said by the respondents that the scope of judicial scrutiny is against orders. The respondents submit that court has gone behind the orders of detention in large number of cases. The respondents submit as follows: It is open to the Court to judge the legality of the orders. This the Court can do by going beyond the order. Though satisfaction is recorded in the order and such recording of satisfaction raises the presumption of legality of order the initial onus on a detenu is only to the extent of creating "disquieting doubts" in the mind of the Court. The doubts are that the orders are based on irrelevant non existing facts or on facts on which no reasonable person could be satisfied in respect of matters set out in section 3 of the Act. If such a prima facie case is established the burden shifts and the detaining authority must satisfy the court about the legality of detention and the detaining authority must remove doubts on all aspects of legality which have been put in issue. If the detaining authority for whatever reasons ] fails to satisfy the court either by not filing an affidavit or not placing such facts which may resolve the doubts about the legality of detention the court may direct release of the detenus. The respondents submit that all that they want is that if the detenus challenge the orders to be malafide or to be not in compliance with the statute and if the court does not have any "disquieting doubts" the court will dismiss the petitions. If the court has any such doubt the court will call for the return. On a return being made if the court is satisfied that the return is an adequate answer the court will dismiss the petition. If the court wants to look into the grounds the court will ask for the production M the grounds and the court itself will look into the grounds but will not show the grounds to the detenus. In short, the respondents submit that the jurisdiction of the court to entertain the application should not be taken away as a result of the Presidential order. F The appellants submit that if Article 359 is not a bar at the threshold and if the Court can entertain a petition, judicial review should be limited within a narrow area. In the forefront 16A(9) of the Act is put because that section forbids disclosure of grounds and information in the possession of the detaining authority. The Nagpur Bench of the Bombay High Court read down section 16A(9) but the Additional Solicitor General submitted that section 16A(9) should not be read down because it enacts a rule of evidence. The Additional Solicitor General submitted as follows: the scrutiny by courts will extend to examining first whether detention is in exercise or purported exercise of law. That will be to find out whether there is a legal foundation for detention. The second enquiry will be whether the law is valid law. If it is a pre emergency law the same can be tested as to whether it was valid with reference to Articles 18 833Sup. CI/76 242 14, 19, 21 and 22. If it is an emergency legislation the validity of law cannot be gone into first, because of Article 358, and, second, because of the Presidential order under Article 359. The other matters which the court may examine are whether the detaining authority is a competent authority under the law to pass the order, whether the detenu has been properly identified, whether the stated purpose is one which ostensibly conforms to law and whether the procedural safeguards enacted by the law are followed. With regard to grounds of detention it is said by the Additional Solicitor General that if the grounds are furnished or are required to be furnished the Court can examine whether such grounds ex facie justify reasonable apprehension of the detaining authority. Where the grounds are not to be furnished, it is said that this enquiry does not arise. The Additional Solicitor General submits that judicial scrutiny cannot extend to three matters first, objective appraisal of the essential subjective satisfaction of the detaining authority, second, examination of the material and information before the detaining authority for the purpose of testing the satisfaction of the authority, and, third, directing compulsory production of the file relating to detenu or drawing and adverse inference from the non production thereof. Material and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosure would impair the proper functioning of public service and administration. The file relating to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question. This was the view taken in the Live sidge (1) case. See also Rogers(2) case. If privilege were to be claimed in each case such a claim would in terms of sections 123 and 162 of the Evidence Act have been invariably upheld. Article 22(G) also contemplates such claims on behalf of the State. That is why instead of leaving it to individual decision in each case or to the discretion of individual detaining authorities to make a claim for privilege, the legislature has enacted section 16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification. Section 16A cannot be said to be an amendment to Article 226. The jurisdiction to issue writs is neither abrogated nor abridged. A claim of privilege arises in regard to documents or information where a party to a suit or proceeding is called upon to produce evidence. Section 16A(9) enacts provisions analogous to a conclusive proof of presumption. Such a provision is a genuine rule of evidence. It is in the nature of an Explanation to sections 123 and 162 of the Evidence Act. Section 16A(9) is a rule of evidence. Therefore when the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise for adverse inference against the authority. If a detenu makes out a prime facie case and the court calls for a return, the affidavit of the (1) [19421 A. C. 206 at 221, 253, 254, 266, 267, 279 and 280 (2) at 400, 401 and 405. 243 authority will be an answer. The Court cannot insist on the production of the file or hold that the case of the detenu stands unrebutted by reason of such non disclosure. To hold otherwise would be to induce reckless averments of malafides to force production of the file which is forbidden by law. Section 16A(9) cannot be read down implying an exception in favour of disclosure to the Court as was suggested by the Bombay High Court (Nagpur Bench). Such disclosure to the court alone and not to the detenu will introduce something unknown to judicial procedure. This will bring in an element of arbitrariness and preclude both parties from representing their respective cases. Further, it would substitute or super impose satisfaction of the Court for that of the Executive. This Court has held that the view of the detaining authority is not to be substituted by the view of the court. (See State of Bombay vs Atma Ram Sridhar Vaidya (1), Shibban Lal Saksena vs The State of Uttar Pradesh & Ors(2). , Rarneshwar Shaw vs District Magistrate, Burdwan & Anr. ,(.3) Jaichand Lal vs W. Bengal(4) and Ram Manohar Lohia 's case (supra). The theory of good return mentioned in the English decisions is based on the language of Habeas Corups Act and the Rules of the Supreme Court of England. The practice of our Court is different. The respondents relied on M. M. Damnoo vs J. & K. State(5) in support of the proposition that the file was produced there and also contended that section 16A(9) can be struck down as happened in A. K. Gopalan 's case (supra) where section 14 of the Preventive Detention Act was struck down. When A. K. Gopalan 's case (supra) was decided Article 22 was in force. Prevention of court from on seeing the grounds contravened Article 22. There was no question of privilege. Section 14 of the Preventive Detention Act in A. K. Gopalan 's case (supra) offended Article 22. (See A. K. Gopalan 's case 1950 section C. R. 88 at 130, 217, 242, 283 84, 332 33). In Damnoo 's case (supra) there was no question of privilage. The file was produced but there was no direction of the court to produce the file. Second. There was no aspect of Article 359. Third. In Damnoo 's case (supra) the analogy of section 14 of the Preventive Detention Act in Gopalan 's case was considered. No provision like section 16A(9) was on the scene. Fourth, The State did not rely on the proviso to section 8 of the relevant Act there to contend that the file could not be produced. Section 16A(9) of the Act contains definite indications of implied exclusion of judicial review on the allegations of malafide. It is not possible for the court to adjudicate effectively on malafides. The reason why section 16A has been enacted is to provide for periodi (1) ; (2) ; (3) ; (4) [1966] Supp. section C. R. 464. (5) ; 244 cal review by Government and that is the safeguard against any unjust or arbitrary exercise of power. It will be useless to attempt to examine the truth of the fact alleged in the order in a case when the fact relates to the personal belief of the relevant authority formed at least partly on grounds which he is not bound to disclose. It is not competent for the court to decide whether the impugned order of detention under section 3(1) or the declaration under section 16A(2) and (3) or the Act during the emergency is a result of malice or ill will. The reason is that it is not at all possible for the court to call for and to have a look at the grounds of the order of detention under section 3(1) or the declaration under section 16A(2) and (3) of the Act that induced the satisfaction in the mind of the detaining authority that it was necessary to detain the person or to make a declaration against him. The grounds of detention and any information or materials on which the detention and the declaration were made are by section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose. No one under the provisions of the Act and in particular section 16A(9) thereof shall communicate or disclose such grounds, materials or information except as provided in section 16A(5) and (8) of the Act. Sub sections (5) and (8) have no application in these cases. The court cannot strike down the order as vitiated by malafide and grant relief since it is not possible for the court without the examination of such grounds, materials and information to decide whether the order of detention is the result of malice or ill will. When the court cannot give any relief on that basis the contention of malafides is not only ineffective but also untenable. (See Lawrence Joachim Joesph D 'Souza vs The State of Bombay(1). The provision for periodical review entrusted to the Government under section 16A(4) of the Act in the context of emergency provides a sufficient safeguard against the misuse of power of detention or arbitrary malafide detention during the emergency. The Government is in full possession of the grounds, materials and information relating to the individual detentions while exercising the power of review. The jurisdiction of the court in times of emergency in respect of detention under the Act is restricted by the Act because the Government is entrusted with the task of periodical review. Even if the generality of the words used in section 3(1) of the Act may not be taken to show an intention to depart from the principle in ordinary times that the courts arc not deprived of the jurisdiction where bad faith is involved, there are ample indications in the provisions of the Act, viz., section 16A(2), proviso to section 16A(3), section 16A(4), section 16A(5), section 16A(7)(ii) and section 16A(9) of the Act to bar a challenge to the detention on the basis of mala (1) ; at 392 93. 245 fides. (See Smith vs East Elloe Rural District Council & Ors.(1) and Ram Manohar Lohia 's case (supra) at 716, 732). This Court said that an action to decide the order on the grounds of malafides does not lie because under the provisions no action is maintainable for the purpose. This Court also referred to the decision in the Liversidge case (supra) where the Court held that the jurisdiction of the court was ousted in such way that even questions of bad faith could not be raised. The production of the order which is duly authenticated constitutes a peremptory answer to the challenge. The onus of showing that the detaining authority was not acting in good faith is on the detenu. This burden cannot be discharged because of the difficulty of proving bad faith in the exercise of subjective discretionary power vested in the administration. De Smith in his Judicial review of Administrative Actions 1973 Edition at page 257 seq. has said that the reservation for the case of bad faith in hardly more than a formality. Detenu will have to discharge the impossible burden of proof that the detaining authority did not genuinely believe he had reasonable cause In Lawrence Joachim Joseph D 'Souza 's case (supra) malafide exercise of power was untenable having regard to the grounds on which detention was based. In the context of emergency section 3 (1) of the Act confers an unlimited discretion which cannot be examined by courts. This rule of construction of the phrases "is satisfied", "in the opinion of", "it appears to be", "has reason to believe" adopted by courts in times of national emergency will be rendered nugatory and ineffective if allegations of malafides are gone into. A distinction is to be drawn between purpose and motive so that where an exercise of power fulfils the purpose for which power was given, it does not matter that he who exercised it is influenced by an extraneous motive because when an act is done which is authorised by the Legislature it is not possible to contest that discretion. So long as the authority is empowered by law action taken to realise that purpose is not malafide. when the order of detention is on the face of it within the power conferred, the order is legal. The width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President. The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control. An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency. For the foregoing reasons the conclusions are as follows: First. In view of the Presidential order dated 27 June, 1975 under clause (1) of Article 359 of our Constitution no person has locus (1) ; at 776. 246 standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or malafide. Second. Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential order Third. Section 16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention. Fourth. It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority. The appeals are accepted. The judgments of the High Courts are set aside. KHANNA, J. Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is" therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness. Those who are entrusted with the task of administering The land have another viewpoint. According to them, although they are conscious of the value of human liberty, they cannot afford to be obvious of the need of the security of the State or the maintenance of public order. Personal liberty has a value if the security of the State is not jeopardised and the maintenance of public order is not threatened. There can be the administrator assert, no freedom to destroy . Allegiance to ideals of freedom cannot operate in vacuum. Danger lurks and serious consequences can follow when thoughts become encysted in fine phrases oblivious of political realities and the impact of real politik. No government can afford to take risks in 247 matters relating to the security of the State. Liberty, they accordingly claim, has to be measured against community 's need for security against internal and external peril. It is with a view to balancing the conflicting viewpoints that the framers of the Constitution made express provisions for preventive detention and at the same time inserted safeguards to prevent abuse of those powers and to mitigate the rigour and harshness of those provisions. The dilemma which faced the Constitution makers in balancing the two conflicting viewpoints relating to liberty of the subject and the Security of the State was not, however, laid to rest for good with the drafting of the Constitution. It has presented itself to this Court in one form or the other ever since the Constitution came into force. A. K '. Gopalan 's(1) was he first case where in a Bench of six Judges of this Court dealt with the matter. Another Bench of seven Judges again dealt with the matter in 1973 in the case of Shambhu Nath Sarkar vs State of West Bengal & Ors(2) In between a number of Benches have dealt with the various facets of the question one such facet has now presented itself to this Constitution Bench The question posed before us is whether in view of the Presidential order dated June 27, 1975 under clause (1) of article 359 of the Constiution, any petition under article 226 before a High Court for writ of habeas corpus to enforce the right of personal liberty of a person detained under the (Act 26 of 1971) (hereinafter referred to as MISA) as amended is maintainable. A consequential question which may be numbered as question No. 2 is, if such a petition is maintainable, what is the scope or extent of judicial scrutiny. The above questions arise in criminal appeals Nos. 279 of 1975" 355 and 356 of 1975, 1845 49 of 1975, 380 of 1975, 1926 of 1975 389 of 1975, 3 of 1976, 41 of 1976 and 46 of 1976. These appeals have been filed against the orders of Madhya Pradesh High Court, Allahabad High Court, Karnataka High Court, Delhi High Court, Nagpur Bench of Bombay High Court and Rajasthan High Court whereby the High Courts repelled the preliminary objections relating to the maintainability of petitions under article 226 for writs of habeas corpus on account of Presidential order dated June 27, 1975. On the second question" some of the high Courts expressed the view that this was a matter which would be gone into while dealing with individual cases on their merits. The other High Courts went into the matter and expressed their view. This judgment would dispose of all the appeals. MISA was published on July 2, 1971. Section 2 of the Act contains the definition clause. Section 3 grants powers to make orders for detaining certain persons and reads as under: "3. (1) The Central Government of the State Government may, (a) if satisfied with respect to any person including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (1) ; (2) ; 248 (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) Any of the following officers, namely: (a) district magistrates, (b) additional district magistrates specially empowered in this behalf by the State Government, (c)Commissioners of Police, wherever they have been appointed, may, if satisfied as provided in sub clauses (ii) and (iii) of clause (a) of sub section (1)" exercise the power conferred by the said sub section. (3) When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been, made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making there of unless in the meantime it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the dates of detention, this sub section shall apply subject to the modification that for the words 'twelve days ', the words 'twenty two days ' shall be substituted. (4) When any order is made or approved by the State Government under this section, the State Government shall within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order." 249 Section 4 and 5 deal respectively with execution of detention orders and the power to regulate place and conditions of detention. According to section 6, detention orders are not to be invalidated or inoperative on the ground that the person to be detained is outside the limits of the territorial jurisdiction of the Government or officer making the order ' or that the place of detention of such person is outside the said limits. Section 8 requires that the Grounds of order of detention should be disclosed to persons affected by the order and he should be granted the earliest opportunity of making a representation against the order. Section 9 deals with the constitution of Advisory Boards. Section 10 makes provision for reference to Advisory Boards. Section 11 prescribes the procedure of Advisory Boards and section 12 requires that action should be taken in accordance with the report of the Advisory Board. According to section 13, the maximum period of detention shall be 12 months from the date of detention. Section 14 confers power of revocation of detention orders. Section 15 confers power upon the appropriate Government to temporarily release the detained persons. Section 16 gives protection to action taken in good faith. Section 17 provides for detention up to two years in certain cases of foreigners. Section 18, which has subsequently been re numbered as section 19, provides for the repeal of the Maintenance of Internal Security ordinance and the saving clause. According to clause (1) of article 352 of the Constitution, if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may, by Proclamation, make a declaration to that effect. On December 3 1971 the President of India issued the following proclamation of emergency: "In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I, V. V. Giri, President of India; by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression. V. V. Giri President" Clause (1) of article 359 of the Constitution reads as under: "Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. " On November 16, 1974 the President of India made the following order: 250 "In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that (a) the right to move any count with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1) (c) of the as amended by ordinance 11 of 1974 for the enforcement of the rights conferred by article 14, article 21 and clauses (4), (5), (6) and (7) of article 22 of the Constitution, and (b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect of orders of detention made under the said section 3(1) (c) ' shall remain suspended for a period of six months from the date of issue of this order or the period during which the Proclamation of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd December, 1971, is in force, whichever period expires earlier. This order shall extend to the whole of the territory of India. " On June 20, 1975 the President of India amended the above order by substituting twelve months" for "six months" in the order. On June 25, 1975 the President of India issued another proclamation of emergency and the same reads as under: "PROCLAMATION OF EMERGENCY In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbance. Sd/ F. A. Ahmed President" New Delhi the 25th June" 1975 On June 27, 1975 the President of India made the following order: exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of their rights conferred by article 14, article 21 and article 22 of the Constitution 251 and all proceedings pending in any court for the enforce h men of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir. This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) of article 359 of the Constitution." On June 29, 1975 another order was issued by the President whereby the words "except the State of Jammu & Kashmir" in the order dated June 27, 1975 were omitted. On September 25, 1975 another Presidential order was issued as a result of which the last paragraph in the Presidential order dated June 27, 1975 was omitted. By Act 39 of 1975 Section 16A was introduced in MISA with effect from June 29, 1975 and the same reads as under : "16A. (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd day of December, 1971 or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest. (2) The case of every person (including a foreigner) against whom an order of detention was made under this Act on or after the 25th day of June, 1975, but before the commencement of this section, shall, unless such person is sooner related from detention, be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub section (1) have been issued hereinafter in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. (3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the 252 State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to, that effect and communicate a copy of the declaration to the person concerned. Provided that where such declaration is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from 5 the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days. (4) The question whether detention of any person in respect of whom a declaration has been made under sub section (2) or sub section (3) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months and if, on such re consideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration. (5) In making any review, consideration or reconsideration under sub sections (2), (3) or (4), the appropriate Government or officer may, if such Government or officer considers it to be against public interest to do otherwise act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned (6) In the case of every person detained under a detention order to which the provisions of sub section (2)S apply, being a person the review of whose case is pending under that sub section or inrespect of whom a declaration has been made under that sub section. (1) section 8 to 12 shall not apply; and (ii) section 13 shall apply subject to the modification that the words and figures which has been confirmed under section 12 shall be omitted. (7) In the case of every person detained under a deten 253 tion order to which the provisions of sub section (3) apply being a person in respect of whom a declaration has been made under that sub section, (1) section 3 shall apply subject to the modification that for sub sections (3) and (4) thereof, the following sub section shall be substituted, namely: (3) when order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order;" (ii) section 8 to 12 shall not apply; and (iii) section 13 shall apply subject to the modification that the words and figures 'which has been confirmed under section 12 ' shall be omitted. " Act 39 of 1975 also inserted section 18 with effect from June 25, 1975 and the same reads as under: "18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any. " By the Constitution (Thirty eighth Amendment) Act, 1975 clauses (4) and (5) which read as under were added in article 352 of the Constitution : "(4) The power conferred on the President by this article shall include the power to issue different Proclamation on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation. (5) Notwithstanding anything in this Constitution, (a) the satisfaction of the President mentioned in clause (1) and clause (2) shall be final and conclusive and shall not be questioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of (1) a declaration made by Proclamation by the President to the effect stated in clause (1); or (ii) the continued operation of such Proclamation." 254 Following clause (1A) was also added after clause (1) of article 359 and the same reads as under: (1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the in competence, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. " The Constitution (Thirty ninth Amendment) Act, 1975 was published on August 10, 1975 and inserted the as item 92 in the Ninth Schedule to the Constitution. On October 17, 1975 ordinance 16 of 1975 was issued making further amendment in section 16A of MISA and the same read as under: "(a) for sub section (5), the following sub section shall be substituted, namely: '(5) In making any review, consideration or re consideration under sub section (2), sub section (3) or sub section (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section (2), or the making or confirming under sub section (3), or the non revocation under sub section (4), of the declaration in respect of him. '; (b) in sub section (7), in clause (1), (1) in the opening portion, for the words 'the following sub section ', the words 'the following ' shall be substituted; (ii) in sub section (3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the order ', the words 'report the fact to the Central Government ' shall be substituted; (iii)after sub section (3) aforesaid, the following shall be inserted, namely: '(4) At any time after the receipt of a report under sub section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars 255 as, in the opinion of the State Government, have a bearing on the necessity for the order. ': (c) after sub section (7), the following sub sections shall be inserted, namely: '(8) in the case of any person in respect of whom a declaration has been made by a State Government under sub section (2) or a declaration has been made by a State Government or an officer subordinate to it or confirmed by the State Government under sub section (3), or a declaration has not been revoked by a State Government under sub section (4), the Central Government may, whenever it considers it necessary so to do, require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed, or not revoked, as the case may be, and such other information and materials as the Central Government may deem necessary. (9) Notwithstanding anything contained in any other law or any rule having the force of law, (a) the grounds on which an order of detention is made under sub section (1) of section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (2) or a declaration or confirmation under sub section (3) or the non revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest Lo disclose and save as. Otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material; (b) no person against whom an order of detention is made under sub section (1) of section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material. " On November 16, 1975 ordinance 22 of 1975 was issued making certain amendments in MISA. By section 2 of the ordinance the words "twelve days" and "twenty days" in sub section (3) of section 3 of MISA were substituted by the words "twenty days" and "twentyfive days" respectively. In section 14 of the principal Act following sub section was substituted for the original sub section: "(2) The expiry or revocation of a detention order (hereafter in this sub section referred to as the earlier detention order) shall not bar the making of another detention 256 order (hereafter in this sub section referred to as the subsequent detention order) under section 3 against the same person: Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person, may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971, whichever is later. " Following sub section (2A) was also inserted in section 16A of the principal Act: "(2A) If the State Government makes a declaration under sub section (2) that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency, the State Government shall be deemed to have approved such detention order and the provisions of sub section (3) of section 3, in so far as they relate to the approval of the State Government, and of sub section (4) of that section, shall not apply to such detention order. " The amendments made by the ordinance were given retrospective effect for the purpose of validating all acts done previously. During the pendency of these appeals, the Maintenance of Internal Security (Amendment) Act, 1976 (Act 14 of 1976) was published on January 25, 1976. This amending Act incorporated and in same respects modified the changes which had been brought about in the principal Act by ordinance 16 of 1975 and ordinance 22 of 1975. Section 2 and 3 of the amending Act incorporate the changes which had been introduced by sections 2 and 3 of ordinance 22 of 1975. At the same time sections 2 and 3 of the amending Act make it clear that substitution brought about by those sections shall be with effect from June 29, 1975. Sections 4, 5 and 6 of the amending Act read as under: "4. In section 16A of the principal Act, (a) after sub section (2), the following sub section shall be inserted, and shall be deemed to have been inserted with effect from the 29th day of June, 1975, namely: '(2A) If the State Government makes a declaration under sub section (2) that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency, the State Government shall be 257 deemed to have approved such detention order and the provisions of sub section (3) of section 3, in so far as they relate to the approval of the State Government, and of sub section (4) of that section, shall not apply to such detention order. '; (b) for sub section (5), the following sub section shall be substituted, and shall be deemed to have been substituted with effect from the 29th day of June, 1975, namely: '(5) In making any review, consideration or reconsideration under sub section (2), sub section (3) or sub section (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section (2), or the making or confirming under sub section (3), or the non revocation under sub section (4), of the declaration in respect of him. ,; (c) in sub section (7), in clause (1), (1) in the opening portion, for the words the following sub section ', the words 'the following ' shall be substituted and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (ii) in sub section (3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the order ', the words 'report the fact to the Central Government ' shall be substituted, E; and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (iii)after sub section (3) aforesaid, the following shall be inserted. and shall be deemed to have been inserted with effect from the 17th day of October, 1975 namely: '(4) At any time after the receipt of a report under sub section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars as. in the opinion of the State Government, have a bearing on the necessity for the order. ', (d) after sub section (7), the following sub sections shall be inserted, and shall be deemed to have been inserted with effect from the 29th day ' of June, 1975, namely: '(8) In the case of any person in respect of whom a declaration has been made by a State Government under sub section (2) or a declaration has been made by a State Government or an officer subordinate to it or confirmed by the State Government under sub section (3), or a declaration has not been revoked by a State Government under sub sec 19 833 SCI/76. 258 tion (4), the Central Government may, whenever it considers it necessary so to do, require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed, or not revoked as the case may be, and such other information and materials as the Central Government may deem necessary. (9) Notwithstanding anything contained in any other law or any rule having the force of law, (a) the grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (3) or the non revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or immaterial or any document containing such ground, information or material; (b) no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material. ' 5. In section 18 of the principal Act, for the words 'detained under this Act ', the words and figure 'in respect of whom an order is made or purported to be made under section 3 ' shall be substituted, and shall be deemed to have been substituted with effect from the 25th day of June, 1975. Any act or thing done or purporting to have been done; before the 16th day of November, 1975, under the principal Act in respect of any person against whom an order of detention was made under that Act on or after the 25th day of June, 1975 or in respect of any such order of detention shall, for all purposes, be deemed to be as valid and effective as if the amendments made to the principal Act by sections 2 and 3, and clause (a) of section 4, of this Act had been in force at all material times." During the pendency of these petitions under article 226 of the Constitution of India before the High Courts for issue of writs of habeas corpus, it was contended on behalf of the Union of India and the States that in view of the Presidential order dated June 27, 1975 under article 359 suspending the right of all persons to move any court for the enforcement of the rights conferred by articles 14 21 and 22 of the Constitution, petitions for issue of writs of habeas corpus were not maintainable. Particular stress was laid upon the fact that 259 the right to move the court for enforcement of the right under article 21 had been suspended and as such no petition for a writ of habeas corpus could be proceeded with. The above mentioned Presidential order was stated to be an absolute bar to the judicial security of the detention orders. This contention did not find favour with the High Courts and they held that despite the said Presidential order the petitions were maintainable and could be proceeded with. Although opinions were not unanimous on the point as to whether the High Courts should without examining the individual facts of each case go into the question of the area of the judicial scrutiny and if so, what was the area of the judicial scrutiny, all the nine High Courts which dealt with the matter came to the conclusion that the Presidential order did not create an absolute bar to the judicial scrutiny of the validity of the detention. The nine High Courts are: (1) Delhi (2) Karnataka (3) Bombay (Nagpur Bench) (4) Allahabad (5) Madras (6) Rajasthan (7) Madhya Pradesh (8) Andhra Pradesh (9) Punjab and Haryana. In these appeals before us, learned Attorney General on behalf of the appellants has drawn our attention to the difference in phraseology of the Presidential order dated June 27, 1975 and the earlier Presidential orders dated November 3, 1962 and November 16, 1974 and has urged that in view of the absolute nature of the Presidential order of June 27, 1975, petition for a writ of habeas corpus is not maintainable. There can be no doubt that the Presidential order dated June 27, 1975 has been worded differently compared to the earlier Presidential orders which were issued under clause (1) of article 359 and that there has been a departure from the pattern which used to be adopted while issuing such orders. The Presidential order dated November 16, 1974 has already been reproduced earlier. Presidential order dated November 3, 1962 issued under clause (1) of article 359 of the Constitution read as under: "ORDER New Delhi, the 3rd November, 1962 G.S.R. 146 In exercise of the powers conferred by clause (1) of article 359 of the Constiution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency 260 issued under clause (1) of article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India ordinance, 196 (4 of 1962) or any rule or order made thereunder. " on November 6, 1962, the rules framed under the ordinance by the Central Government were published. On November 11, 1962 the Presidential order reproduced above was amended and for the words and figure "article 21", the words and figures "articles 14 and 21" were substituted. The Defence of India ordinance was subsequently replaced by the Defence of India Act and the rules framed under the ordinance were deemed to have been framed under the Act. Perusal of the above Presidential order of 1962 shows that what was suspended was the right of any person to move any court for the enforcement of rights conferred by articles 14, 21 and 22. The suspension was, however, conditioned by the circumstance that such person had been deprived of such rights under the Defence of India Act or any rule or order made thereunder. It was plain that in case a detention order was made or any other action was taken not under the provisions of the Defence of India Act or any rule or order made thereunder, the same could not enjoy the protection of the Presidential order under article 359. Another effect of the Presidential order was that as long as the proclamation of emergency was in force, the validity of the provisions of the Defence of India Act or the rules or orders made thereunder could not be assailed on the ground of being violative of articles 14, 21 and 22. It is also clear that in view of article 358, while a proclamation of emergency was in operation, nothing in article 19 could have restricted the power of the State to make any law or to take any executive action which the State could but for the provisions contained in Part III was competent to make or to take. Likewise, under the Presidential order dated November 16, 1974 which has been already reproduced earlier, what was suspended was the right to move any court with respect to an order of detention which might have been made or which might be made thereafter under section 3(1)(c) of the as amended for the enforcement of rights conferred by articles 14, 21 and clause (4) to (7) of article 22 of the Constitution. Proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under section 3 (1) (c) too were suspended. It was plain from the language of the Presidential order that there could be no suspension of the right mentioned in the Presidential order if the detention order could not be shown to have been made under section 3(1)(c) of MISA because an order not under section 3(1) (c) was outside the Presidential order. The Presidential order of 1962 under article 359(1) of the Constitution came to be considered by this Court in the case of Makhan Singh vs State of Punjab.(1) Gajendragadkar J. (as he then was) speaking for six out of the Bench of seven Judges of this Court observed while dealing with the effect of the Presidential order on a petition of habeas corpus: (1) [1964] 4 section C. R. 797. 261 "We have already seen that the right to move any court which is suspended by article 359(1) and the Presidential order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provision of the Act have been contravened. Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention i has been ordered malafide. It is hardly necessary to ; emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can ; always be successfully challenged. It is true that a mere allegation that the detention is malafide would not be enough; the detenu will have to prove the malafides. But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential order. That is another kind of plea which is outside the purview of article 359(1). " It was further observed : "It is only in regard to that class of cases falling under section 491(1) (b) where the legality of the detention is challenged on grounds which fall under article 359(1) and Presidential order that the bar would operate. In all other cases falling under section 491(1) the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law. We ought to add that these categories of pleas have been mentioned by us by way of illustrations, and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order. There is yet another ground on which the validity of the detention may be open to challenge. If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and IS, therefore, invalid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi 262 dential order. In terms, it is not a plea which is relatable to the fundamental rights specified in the said order. It is a plea which is independent of the said rights and its validity must be examined. " In the case of State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr(1). Subba Rao J. (as he then was) speaking for the Constitution bench of this Court observed: "Article 358 of the Constitution suspends the provisions of article 19 of Part III of the Constitution during the period the proclamation of emergency is in operation; and the order passed by the President under article 359 suspended the enforcement, inter alia, of article 21 during the period of the said emergency. But the President 's order was a conditional one. In effect it said that the right to move the High Court or the Supreme Court remained suspended if such a person had been deprived of his personal liberty under the Defence of India Act, 1962, or any rule or order made thereunder. If a person was deprived of his personal liberty not under the Act or a rule or order made there under but in contravention thereof, his right to move the said Courts in that regard would not be suspended. The question, therefore, in this case is whether the first respondent 's liberty has been restricted in terms of the Defence of India Rules where under he was detained. If it was in contravention of the said Rules he would have the right to approach the High Court under article 226 of the Constitution. " Similar view was expressed in the case of Dr. Ram Manohar Lohia vs State of Bihar & Ors.(2) Sarkar J. (as be then was) in that case observed that where a person was detained in violation OF the mandatory provisions of the Defence of India Act, his right to move the court was not suspended. Hidayatullah and Bachawat JJ. referred to the fact that the Presidential order did not say that even if a person was proceeded against in breach of the Defence of India Act or the rules, he could not move the court or complain that the Act and the Rules under colour of which some action was taken did not warrant it. The Presidential order was held to have not intended to condone an illegitimate enforcement of the Defence of India Act. Raghubar Dayal J. held that the Court could go into the question as to whether the District Magistrate exercised the power of detention under the Defence of India Rules bonafide and in accordance with the rules. Mudholkar J. Observed that if a detenu contends that the order. though it purports to be under rule 30(1) of the Defence of India Rules, was not competently made, this Court had a duty to enquire into the matter. Sarkar, Hidayatullah, Mudholkar and Bachawat JJ. On consideration of the material before them found that as the detention order had been made with a view to present the detenu from acting in a manner prejudicial to the maintenance of (1) ; (2) ; 263 law and order and not public order, as contemplated by rule 30, the detention order was not in conformity with law. The petitioner in that case was accordingly directed to be set at liberty. The observations in the cases referred to above show that the validity of the detention orders could be assailed despite the Presidential orders of: 1962 and 1974 under article 359 in case the right relied upon was not one covered by these Presidential orders. The protection afforded by those Presidential orders was not absolute, it Was conditional and confined to ruling out the challenge to detention orders and other actions taken under the provisions mentioned in those Presidential orders on the score of contravention of the articles specified in those orders. If the detention of a detenu was not in accordance with the provisions mentioned in the Presidential orders, the Presidential orders did not have the effect of affording protection to the detention order and it was permissible to challenge the validity of the detention on the ground that it had not been made under the specified provisions but in contravention of those provisions. We may now deal with the Presidential order dated June 27, 1975 with which we are concerned. Unlike the Presidential orders under clause (1) of article 359 issued earlier, this Presidential order makes no reference to any detention order made under any specified provision. It seeks to impose a blanket suspension of the right of any person, including a foreigner, to move any court far the enforcement of the rights conferred by articles 14, 21 and 22 of the Constitution and of all proceedings pending in any court for the enforcement of the above mentioned rights for the period during which the proclamation of emergency is in force. The observations which were made by this court in the cases referred to above in the context of the phraseology of the earlier Presidential orders of 1962 and 1974 namely the detention orders made under specified provisions, cannot now be relied upon while construing the ambit of the Presidential order of June 27, 1975. The difference in phraseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the conclusion that because of the new Presidential order dated June '27, 1975 a detention order need not comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order. The effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relied upon. Reliance, however, can still be placed upon the observations made in those cases which were not linked with the phraseology of the earlier Presidential orders. Question then arises as to what is the effect of the suspension of the right of a person to move any court for the enforcement of rights 264 conferred by articles 14, 21 and 22 of the Constitution. One obvious result of the above is that no one can rely upon articles 14, 21 and 22 with a view to seek relief from any court. According to the stand taken by the learned Attorney General, the effect of the suspension of the right of a person to move any court for the enforcement of the right conferred by article 21 is that even if the order for detention has been made without the authority of law, no redress can be sought from the court against such detention order. Article 21 of the Constitution reads as under: "No person shall be deprived of his life or personal liberty except according to procedure established by law. " It is urged that article 21 is the sole repository of one 's right to life or personal liberty. The moment the right to move any court for enforcement of article 21 is suspended, no one can, according to the submission, complain to the court of deprivation of life or personal liberty for any redress sought from the court on that score would be enforcement of article 21. Petition under article 226 for the issue of a writ of habeas corpus, it is contended by learned Attorney General, is essentially a petition to enforce the right of personal liberty and as the right to move any court for the enforcement of the right conferred by article 21 is suspended, no relief can be granted to the petitioner in such petition. In order to assess the force of the above argument, it may be necessary to give the background and the history of article 21. In the original draft of the Indian Constitution, in the article which now stands as article 21 the words used were "in accordance with due process of law" instead of the words "according to procedure established by law. " The concept of expression "due process of law" or its equivalent "law of the land" traces its lineage for back into the beginning of the 13th century A.D. The famous 39th chapter of the Magna Carta provides that "no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land." Magna Carta as a charter of English liberty was confirmed by successive English monarchs. It was in one of these confirmations (28 Ed. III, Chap. 3) known as "Statute of Westminster of the liberties of London" that the expression "due process of law" appears to have been used for the first time. Neither of the expressions "due process of law" or "law of the land" was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made. The expression "due process of law" came to be a part of the US Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall be 265 deprived of life, liberty or property without due process of law. " A Similar expression was used in the Fourteenth Amendment in 1868. It has been said that few phrases in the law are so elusive of exact apprehension as "due process of law." The United States Supreme Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions as they arise. The expression "due process of law," as used in the US Constitution, has been taken to impose a limitation upon the powers of the Government, legislative as well as executive and judicial. Applied in England as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation. "Due process of law," according to Cooley, "means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs" (Constitutional Limitations, Vol. II, p. 741). 'Till about the middle of the 19th Century, due process clause was interpreted as a restriction upon procedure, and particularly the judicial procedure, by which the Government exercises its power. Principally it related to the procedure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in Compliance with well established criminal proceedings. The same principle applied to the machinery or proceedings by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised. During this period it was not considered to have any bearing on substantive law at all. Subsequently view came to be accepted that the concept of due process of law protected rights of life, liberty and property. This change in judicial thinking was influenced in a great measure by the industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class. What constituted legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was reasonable in the opinion of the Court. The US Supreme Court laid stress upon the word "due" which occurs before and qualifies the expression "process of law." "Due" means "what is just and proper" according to the circumstances of a particular case. The word introduces a variable element in the application of the doctrine, for what is reasonable in one set of circumstances may not be so in another set of circumstances. The requirement of due process clause as a substantial restriction on Government control is also now becoming a thing of the past and the rule is being restricted more and more to its original procedural aspect (see observations of Mukherjea J. in the case of A. K. Gopalan, (supra). At the time the Constitution was being drafted, the Constitutional Adviser Mr. B. N. Rau had discussions with US Constitutional experts some of whom expressed the opinion that power of review implied in due process clause was not only undemocratic because it 266 gave the power of vetoing legislation to the judges, but also threw an unfair burden on the judiciary. This view was communicated by Mr. Rau to the Drafting Committee which thereupon substituted the words "except according to procedure established by law" for words "due process, of law. " In dropping the words "due process of law," the framers of our Constitution prevented the introduction of elements of vagueness, uncertainty and changeability which had grown round the due process doctrine in the United States. The words ' except according to procedure established by law" were taken from article 31 of the Japanese Constitution, according to which "no person shall be deprived of life or liberty nor shall any criminal liability be imposed, except according to procedure established by law. The article is also somewhat similar to article 40(4)(1) of Irish Constitution, according to which no person shall be deprived of his personal liberty save in accordance with law. " It was laid down in Gopalan 's case by the majority that the word "law" has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice. "The procedure established by law" was held to mean the procedure established by law made by the State, that is to say, the Union Parliament or the legislatures of the States, Law, it was also observed by Mukherjea J., meant a valid and binding law under the provisions of the Constitution and not one infringing fundamental rights. The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21, in my opinion, is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that article for obtaining relief from the court during the period of emergency. Question then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law still survives during the period of emergency despite the Presidential order r suspending the right to move any court for the enforcement of the right contained in article 21. The answer to this question is linked with the answer to the question as to whether article 21 is the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law. Many modern constitutions incorporate certain fundamental rights, including the one relating to personal freedom. According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness. The Second Amendment to the US Constitution refers inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process of law. The different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity 267 of life and liberty. They have also given expression in varying words to the principle that no one shall be deprived of his life or liberty without the authority of law. The International Commission of Jurists, which is affiliated to Unesco, has been attempting with considerable success to give material content to "the Rule of Law," an expression used in the Universal Declaration of Human Rights. One of its most notable achievements was the Declaration of Delhi, 1959. This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000 lawyers. "Respect for the supreme value of human personality" was stated to be the basis of all law (see page 21 of the Constitutional and Administrative Law by o. Hood Phillips, 3rd Ed. Freedom under law, it may be added, is not absolute freedom. It has its own limitations in its own interest, and can properly be described as regulated freedom. In the words of Ernest Barker, (1) the truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free. that (ii) the need of liberty for each is necessarily qualified and conditioned by the need of liberty for all: that (iii) liberty in the State or legal liberty, is never the absolute liberty of all: that (iv) liberty within the State is thus a relative and regulated liberty; and that (v) a relative and regulated liberty; actually, operative and enjoyed. is a liberty greater in amount an absolute liberty could ever be if indeed such liberty could ever exist, or even amount to anything more than nothing at all. Rule of law is the antithesis of arbitrariness. Plato believed that if philosophers were kings or kings philosophers government by will would be instrinsically superior to government by law, and he so proclaimed in his Republic. Experience eventually taught him that this ideal was not obtainable and that if ordinary men were allowed to rule by will alone the interests of the community would be sacrificed to those of the ruler. Accordingly. in the Laws he modified his position and urged the acceptance of the "second best", namely government under law. Since then the question of the relative merits of rule by law as against rule by will has been often debated. In the aggregate the decision has been in favour of rule by law. On occasions however, we have slipped back into government by will only to return again, sadder and wiser men, to Plato 's "second best" when the hard facts of human nature demonstrated the essential egotism of men and the truth of the dictum that all power corrupts and absolute power corrupts absolutely. Bracton 's dicta that if the king has no bridle one ought to be put upon him, and that although the king is under no man he is under God and the law Fortescue 's insistence that the realm of England is a reginem politicium et regale and hence limited by law. Coke 's observation that "Magna Carta is such a fellow that he will have no sovereign"; these are but a few of the beacons lighting the way to the triumph of the rule of law (see pages 3 6 of the Rule of Law by Malcolm Macdonald & ors.). Rule of law is now the accepted norm of all civilised societies. Even if there have been deviations 268 from the rule of law, such deviations have been covert and disguised for no government in a civilized country is prepared to accept the ignominy of governing without the rule of law. As observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed., the rule of law has come to be regarded as the mark of a free society. Admittedly its content is different in different countries, nor is it to be secured exclusively through the ordinary courts. But everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law. Sanctity of life and liberty was not something new when the Consitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollory of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept. This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation. Great writers and teachers, philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self interest and for orderly existence. According even to the theory of social compact many aspects of which have now been discredited, individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government. Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens. Such norms take the shape of the rule of law. Respect for law, we must bear in mind, has a mutual relationship with respect for government. Erosion of the respect for law, it has accordingly been said, affects the respect for the government. Government under the law means, as observed by Macdonald, that the power to govern shall be exercised only under conditions laid down in constitutions and laws approved by either the people or their representatives. Law thus emerges as a norm limiting the application of power by the government over the citizen or by citizens over their fellows. Theoretically all men are equal before the law and are equally bound by it regardless of their status, class, office or authority. At the same time that the law enforces duties it also protects rights, even against the sovereign. Government under law thus seeks the establishment of an ordered community in which the individual, aware of his rights and duties, comprehends the area of activity within which, as a responsible and intelligent person, he may 269 freely order his life, secure from interference from either the government or other individuals (see Rule of Law, page 6). To quote further from Professor Macdonald: "It is clear enough that high echelon administrators are understandably impatient with the restraints imposed upon them by the traditional concept of the rule of law as developed by Dicey. Administrators deal with the implementation of highly technical and complex matters involving the immediate interests of many citizens, To accomplish this they are granted wide discretion in the use of administrative power to effectuate broad policies laid down by the legislators. It is natural that they should desire to have the conflicts which arise as the result of the exercise of their discretion adjudicated by tribunals composed of experts acquainted with the details of the matters at issue, rather than by judges trained only in the law. Hence their resistance to judicial review of administrative 'findings of fact ' as opposed to 'findings of law '. The very things which a court of law prizes rules of evidence, common law procedures, even due process frequently appear to the administrators as obscurantist devices employed by those who oppose the very principle of the policy he is attempting to effectuate. Often, secretly if not openly, the administrator considers his policy to be the incarnation of the best interests of the people, or at least of their best interests if they really understood them, and hence considers himself as arrayed on the side of progress and light against the dark forces of reaction. E Thus our 'wonderland of bureaucracy ', as Beck has called it, has sought autonomy from the traditional rule of courts and law. If it should succeed we should then indeed be confronted with a vital segment of govern mental power which would have escaped from legal control and become arbitrary in its acts. To prevent this we have subjected the acts of administrators to challenge in the courts on the basis of ultra vires, and provided for judicial review of administrative tribunals ' finding of law." (see ibid page 8) . To use the words of Justice Brandeis(1) with some modification, experience should teach us to be most on our guard to protect liberty when the Government 's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded persons. Greatest danger to liberty lies in insidious encroachment by men of zeal, well meaning but lacking in due deference for the rule of law Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without (1) Olmstead vs United States, ; (1928). 270 the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering With life and liberty must receive sustenance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution. It does not, however, follow from the above that if article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law. No case has been cited before us to show that before the coming into force of the Constitution or in countries under rule of law where there is no provision corresponding to article 21, a claim was ever sustained by the courts that the State can deprive a person of his life or liberty without the authority of law. In fact, any suggestion to such a claim was unequivocally repelled. In the case of James Sommersett(1) Lord Mansfield dealt with a case of a negro named Sommersett, who was being taken in a ship to Jamaica for sale in a slave market. When the ships anchored at London port, a habeas corpus petition was presented by some Englishmen who were moved by the yelling and cries of Sommersett. In opposition to the petition the slave trader took the plea that there was no law which prohibited slavery. Lord d Mansfield while repelling this objection made the following observation in respect of slavery which is one of the worst forms of deprivation of personal freedom: "It is so odious that nothing can be suffered to support it but positive law: whatever inconveniences, therefore, may follow from this decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged. " In other case, Fabriqas vs Mostyn(2) Lord Mansfield observed on page 173: "To lay down in an English court of Justice that a Governor acting by virtue of Letters Patent. under the Great Seal, is accountable only to God and his own con science; that he is absolutely despotic and can spoil, plunder. and affect His Majesty 's subjects, both in their liberty and property, with impunity, is a doctrine that cannot be maintained" The above observations were relied upon in the matter of Ameer Khan(3). I may also refer to the observations of Lord Atkin in the (1) [1772], 16 Cr. Pract. (2) ; (3) 6 Bengal Law Reports 392. 271 case of Eshuqbavi Eleko vs Officer Administering the Government of Nigeria (1) "In accordance with British jurisprudence, no member of the executive can interfere with the liberty or property of ;3 British subject except on the condition that he can sup port the legality of his action before a Court of Justice. And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive The above rule laid down in Eleko 's case was followed by the High Courts in India before the coming into force of the Constitution in Prabhakar Kesheo Tare & ors. vs Emperor(2), Vimlabai Deshpande vs Emperor(2), Jitendranath Ghosh v, The Chief Secretary to the Government of Bengal(4) and In re: Banwari Lal Roy & ors.(5). The rule laid down in Eleko 's case was also followed by the Constitution Benches of this Court after the coming force of the Constitution in the cases of Bidi Supply Co. vs The Union of India & ors.(6) and Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan & Anr.(7). I am unable to subscribe to the view that when right to enforce the right under article 21 is suspended, the result would be that there would be no remedy against deprivation of a person 's life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law. The right not to be deprived of one 's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan 's case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution. Recognition as fundamental right of one aspect of the pre Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from article 359. I am also unable to agree that in view of the Presi (1) (2) AIR 1943 Nag. 26. (3) A. I. R. (4) I. L. R. (5) (6) ; (7) [1959] Supp. (1) section C. R. 528. 272 dential order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coming into force of the Constitution. The case of Dhirubha Devisingh Gohil vs The State of Bombay(1) upon which reliance has been placed by learned Attorney General cannot be of much assistance to him. In that case this Court held that the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of the fact that Act had been inserted, in the Ninth Schedule of the Constitution. This Court also repelled the contention that the said Act was violative of section 229 of the Government of India Act, 1935 because, in the opinion of the Court, the right secured by section 229 was lifted into the formal category of a fundamental right. The principle laid down in that case cannot be invoked in a case like the present wherein the area covered by the right existing since before the Constitution is wider than the area covered by the fundamental right and the fundamental right deals with only an aspect of such pre existing right. Moreover, the correctness of the view taken in the above case, in my opinion, is open to question in view of the later decision of Makhan Singh (supra) decided by a Bench of seven Judges wherein it has been observed on page 821 that after the coming into force of the Constitution, a detenu has two remedies, one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure. Makhan Singh 's case, as discussed elsewhere, shows that the remedy under an earlier statuory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity. Preventive detention, though not strictly punishment, is akin to punishment, because of the evil consequences of being deprived of one 's liberty. No one under our laws can be deprived of his life or liberty without the authority of law. This would be evident from the fact that if a person without the authority of law takes another person 's life, he would normally be guilty of the offence of culpable homicide. Likewise, if a person deprives another of his liberty by confining him, he would in the absence of any valid justification, be guilty of wrongful confinement. It is for that reason that courts have insisted upon the authority of law for a public servant to take away someone 's life or liberty. An executioner carrying out the sentence of death imposed by the court would not commit the offence of homicide, because he is executing the condemned man in obedience to a warrant issued by a court having jurisdiction in accordance with the law of the land. Likewise, a jailor confining a person sentenced to imprisonment is not guilty of the offence of wrongful confinement. The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the rule of law of the (1) ; 273 sanctity of life and liberty, it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or liberty without the authority of law. The fact that penal laws of India answer to the description of the word "law", which has been used in article 21 would not militate against the inference that article 21 is not the sole repository of the right to life or personal liberty and that the principle that no one shall be deprived of his life or personal liberty without the authority of law flows from the penal laws of India. Nor is it the effect of article 21 that penal laws get merged in article 21 because of the fact that they constitute "law" as mentioned in article 21 for were it so the suspension of the right to move a court for enforcement of fundamental right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws It has been pointed out above that even before the coming into force of the Constitution, the position under the common law both in England and in India was that the State could not deprive a person of his life and liberty without the authority of law. The same was the position under the penal laws of India. It was all offence under the Indian Penal Code, as already mentioned, to deprive a person of his life or liberty unless such a course was sanctioned by the laws of the land. An action was also maintainable under the law of torts for wrongful confinement in case any person was deprived of his personal liberty without the authority of law. In addition to that, we had section 491 of the Code of Criminal Procedure which provided the remedy of habeas corpus against detention without the authority of law. Such laws continued to remain in force in view of article 372 after the coming into force of the Constitution. According to that article, notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by competent legislature or other competent authority. The law in force, as observed by the majority of he Constitution Bench in the ease of Director of Rationing and Distribution vs The Corporation of Calcutta & Ors. include not only the statutory law but also custom or usage having the force of law as also the common law of England which was adopted as the law of the country before the coming into force of the Constitution. The position thus seems to be firmly established that at the time the Constitution came into force, the legal position was that no one could be deprived of his life or liberty without the authority of law. It is difficult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no one could be deprived of his life or liberty without the authority of law (1) ; 18 833SCI/76 274 was obliterated and ceased to remain in force. No rule of construction interpretation warrants such an inference. Section 491 of the Code of Criminal Procedure continued to remain an integral part of that Code despite the fact that the High Courts were vested with the power of issuing writs of habeas corpus under article 226. No submission was ever advanced on the score that the said provision had become a dead letter of unforceable because of the fact that article 226 was made a part of the Constitution. Indeed, in the case of Malkha Singh (supra) Gajendragadkar J. speaking for the majority stated that after the coming into force of the Constitution, a party could avail of either the remedy of section 491 of the Code of Criminal Procedure or that of article 226 of the Constitution. The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491 of the Code of Criminal Procedure continued to be part of that Code till that Code was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under the new Code of Criminal Procedure, 1973, the same remedy is still available under article 226 of the Constitution. Our attention has been invited to section 18 of the maintenance of Internal Security Act as amended. According to that section, no person, including a foreigner, in respect of whom an order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any. This section would not, in my opinion, detract from my conclusion that article 21 is not the sole repository of the right to personal liberty. It has been pointed out above that the principle that no one shall be deprived of his life and personal liberty without the authority of laws follows not merely from common law, it flows equally from statutory law like the penal law in force in India. The above principle, as would appear from what has been discussed elsewhere, is also an essential facet of the rule of law. Section 18, therefore, cannot be of much assistance to the appellants. I am also unable to subscribe to the view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention. There has been, it needs to be emphasised, no amendment of section 3 of the Act. Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act, it shall be taken to be an order under section 3 of the Act. Apart from the fact that such an inference is not permissible on the language of section 18, the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power. The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made. It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made. To do so would be tantamount to abdication of legislatitve function for in such 275 an event it would be open to the detaining authority to detain a person on any ground whatsoever. l agree with the learned Attorney General that if we are to accept his argument about the scope of the Presidential order of June 27, 1975, in that event we have to accept it in its entirety and go the whole hog; there is no half way house in between. So let us examine the consequences of the acceptance of the above argument. This would mean that if any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency. This would also mean that it would not be necessary to enact any law on the subject and even in the absence of any such law, if any official for reasons which have nothing to do with the security of State or maintenance of public order, but because of personal animosity, arrests and puts behind the bar any person or a whole group or family of persons, the aggrieved person or persons would not be able to seek any redress from a court of law. The same would be the position in case of threat of deprivation or even actual deprivation of life of a person because article 21 refers to both deprivation of life as well as personal liberty. Whether such things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that article 21 is the sole repository of the right life and personal liberty and that consequent upon the issue of the Presidential order, no one can approach any court and seek relief during he period of emergency against deprivation of life or personal liberty. In order words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers. To take another illustration. Supposing the Presidential order under article 359(1) were to mention article 21 but not article 22. The acceptance of the above submission advanced on behalf of the appellants would mean that if the State does not release a detenu despite the opinion of the Advisory Board that there is no sufficient cause for his detention and thus keeps him in detention in fragrant violation of the provisions of article 22, no habeas corpus petition would be maintainable and this would be so even though article 22 itself is a fundamental right. The right to move a court for enforcement of a right under article 19 has now been suspended by the President under an order issued under article 359(1). The effect of that, on a parity of reasoning advanced on behalf of the appellant would be, that no one can file a suit during the period of emergency against the State for recovery of property or money (which is a form of property) because such a suit, except in some contingencies, would be a Suit to enforce the right contained in article 19. 276 Not much argument is needed to show that if two constructions of Presidential order were possible, one leading to startling results and the other not leading to such results, the court should lean in favour of such construction as would not lead to such results. Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the inter national law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the inter national law or treaty obligations. Every statute, according to this rule, is interpreted, so far as its language permits, so as not to be inconsistent with the committee of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language. But if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results (see page 183 of Maxwell on the Interpretation of Statutes, Twelfth Edition.) As observed by Oippenheim 's International law, although municipal courts must apply Municipal Law even if it conflicts with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that an enlightened State would intentionally enact a rule conflicting with the Law of Nations. A rule of Municipal Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as to avoid such conflict (see Vol. 1, pages 45 46), Lord Denning gave expression to similar view in the case of Corocraft craft Ltd. vs Pan American Airways Inc. (1) when he observed "The Warsaw Convention is an international convention which is binding in international law on all the countries who have ratified it and it is the duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it. " The rule about the construction of municipal law also holds good when construing the provisions of the Constitution as would appear from International Law by Fenwick, Third Edition, page 90, wherein is observed: "But while in the case of a direct conflict between national and international law, the rule of national law will of necessity take priority until changed to conform to the international obligations of the state, there are numerous cases in which the provisions of the national constitution of the provisions of a particular legislative act are not so but that they may be interpreted so as to enable the executive and the judicial agencies of the state to act in accordance with the obligations of international law." (1) [1969] 1 All E. R.80. 277 According to article 51 our Constitution, the State shall endeavour to inter alia foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Relying upon that article, Sikri CJ. Observed in the case of Kesavananda Bharathi vs State of Kerala(1): "It seems to me that, in view of art 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India." Articles 8 and 9 of the Universal Declaration of Human Rights in respect of which resolution was passed by the United Nations and was supported by India read as under: ARTICLE 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. ARTICLE 9 No one shall be subjected to arbitrary arrest, detention or exile. ' While dealing with the Presidential order under article 359(1), we should adopt such a construction as would, if possible, not bring it in conflict with the above articles 8 and 9. From what has been discussed elsewhere, it is plain that such a construction is not only possible, it is also preeminently reasonable. The Presidential order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law. It has been argued that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law. This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law. Supposing a law is made that in the matter of the protection of life and liberty, the administrative officers would not be governed by any law and that it would be permissible for them to deprive a person of life and liberty without any authority of law. In one sense, it might in that event be argued that even if lives of hundreds of persons are taken capriciously and maliciously without the authority of law, it is enforcement of the above enacted law. As observed by Friedmann on page 500 of Law in Changing Society, 2nd Ed., in a purely formal sense, any system of norm based on a hierarchy of orders, even the organised mass murders of Nazi regime qualify as law. This argument cannot however, disguise the reality of the matter that hundreds of innocent lives have been taken because of the absence of rule of law. A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by a statute. Absence of rule (1) [1973] Supp. S.C.R. 1. 278 of law would nevertheless be absence of rule of law even though it is brought about by a law to repeal all laws. In the words of Wade, Government under the rule of law demands proper legal limits on the exercise of power. This does not mean merely that acts of authority must be justified by law, for if the law is wide enough it can justify a dictatorship based on the tyrannical but perfectly legal principle quod principi placuit legis habet vigorem. The rule of law requires something further. Powers must first be approved by Parliament, and must then be granted by Parliament within definable limits (see Administrative Law, Third Edition, page 46). It is no doubt true that Dicey 's concept of rule of law has been criticised by subsequent writers since it equates the rule of law with the absence not only of arbitrary but even of wide discretionary power. The following reformulation of Dicey 's ideas as applicable to modern welfare state given by H.W. Jones eliminates the equation of arbitrary and wide discretionary powers: "There are, I believe, ideas of universal validity reflected in Dicey 's 'three meanings ' of the rule of law (1) in a decent society it is unthinkable that government, or any . Officer of government, possesses arbitrary power over the person or the interests of the individual; (2) all members of society, private persons and governmental officials alike, must be equally responsible before the law; and (3) effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the State" (see Law in a Changing Society by Friedmann, 2nd Ed., page 501). One of the essential attributes of the rule of law is that executive action to the prejudice of or detrimental to the right of an individual must have the sanction of some law. This principle has now been well settled in a chain of authorities of this Court. In the case of Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab(1) Mukherjea C.J. speaking for the Constitution Bench of this Court observed: "Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law, in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business a specific legislation sanctioning such course would have to be passed. " The above attribute of the rule of law has been specially high lighted in the decision of this Court in the case of State of Madhya Pradesh & Anr. vs Thakur Bharat Singh(2). In that case the State Government made an order under section 3 of the Madhya Pradesh Public Security Act, 1959, directing that the respondent (1) shall not be in any place in Raipur District, (ii) shall immediately proceed (1) , (2) ; 279 to and reside in a named town, and (iii) shall report daily to a police station in that town. The respondent challenged the order by a writ petition under articles 226 and 227 of the Constitution on the ground inter alia, that section 3 infringed the fundamental rights guaranteed under article 19 of the Constitution. The High Court declared clauses (ii) and (iii) of the order invalid on the ground that clauses (b) and (c) of section 3 (1) of the Madhya Pradesh Public Security Act on which they were based contravened article 19. On appeal this Court held that section 3 (1) (b) violated article 19 and as it was a pre emergency enactment, it must be deemed to be void when enacted. Section 3 (1) (b) was further held not to have revived as a result of the proclamation of emergency by the President. Counsel for the State submitted in the alternative that even if section 3 (1) (b) was void, article 358 protected action, both legislative and executive, taken after proclamation of emergency, and therefore any executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under article 19. This contention was repelled. Shah J. (as he then was) speaking for the Court observed: "All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of article 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i. e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State legislative, executive and judicial each organ having some check direct or indirect on the other: and (3) the rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his Introduction to the study of the Law of the Constitution ', 10th Edn., at P. 202 the expression 'rule of law ' has three meanings, or may be regarded from three different points of view. 'It means in the first place, the absolute supremacy or predominance of regular law as opposed to the HE influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionay 280 authority on the part of government. ' At p. 188 Dicey points out: 'In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England: and a study of European polities now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority. On the part of the government must mean insecurity for legal freedom on the part of its subjects. ' We have adopted under our Constitution not the Continental system but the British system under which tile rule of law prevails. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. " In Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors. vs Om Parkash & Ors. (1) a Division Bench of this Court observed: "In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court. " In District Collector of Hyderabad & Ors. vs M/s. Ibrahim & Co. etc. (2) the respondents who were recognized dealers in sugar were prevented by an executive order from carrying on the business. The question which actually arose for decision before this Court was whether the said order was protected under articles 358 and 359 because of the declaration of state of emergency by the president. Shah J. speaking for Bench of six Judges of this Court observed: "But the executive order immune from attack is only that order which the State was competent, but for the provisions contained in article 19, to make. Executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken. Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control order, it was not protected under article 358 of the Constitution. Nor had it the protection under article 259." (1) ; (2) 281 In Bennett Coleman & Co. & ors. v Union of India(l) Ray J. (as he then was) speaking for the majority of the Constitution Bench relied upon Thakur Bharat Singh and M/s Ibrahim & Co. cases (supra) and observed: "Executive action which is unconstitutional is not immune during the proclamation of emergency. During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any per emergency law which was invalid when enacted. " In Shree Meenakshi Mills Ltd. vs Union of India(2) this Court dealt with petitions challenging the validity of the fixation of price of cotton yarns under an executive order. Objection was raised to the maintainability of the petitions on the score of proclamation of emergency. This objection was repelled and reliance was placed on the decision of the Court in the case of Bennett Coleman & Co. In Naraindas lndurkhya vs The State of Madhya Pradesh (3) the Constitution Bench of this Court to which three of us (Ray C. J, I) Khanna and Bhagwati JJ.) were parties placed reliance on the decisions in the cases of Ram Jawaya Kapur, Thakur Bharat Singh and Bennett Coleman & Co. (surpa) These authorities clearly highlight the principle that executive authorities cannot under the rule of law take any action to the prejudice of an individual unless such action is authorised by law. A fortiori it would follow that under the rule of law it is not permissible to deprive a person of his life or personal liberty without the authority of law. It may be appropriate at this age to refer to other eases in which stress has been laid on rule of law by this Court. Wanchoo J. in the case of Director of Rationing and Distribution vs The Corporation of Calcutta & ors.(l) stated. that in our county the rule of law prevails and our Constitution has guaranteed, it by the provisions contained in Part III thereof as well as other provisions in other Parts. In Bishan Das & ors. vs The State of Punjab & ors.(5) section K. Das J. speaking for the Constitution Banch of this Court deprecated action C; taken by the State and its officers on the ground that it was destructive of the basic principles of the rule of law. In G. Sadanandan vs State of Kerala & Anr. (supra) Gajendragadkar CJ. speaking for the Constitution bench observed that the Paramount requirement of the Constitution was that even during (1) ; (2) (3) A. I. R. 1974 section C. 1232. (4) ; (5) 11962] 2 section C.R. 69. 282 emergency. the freedom of Indian citizens would not be taken away without the existence of justifying necessity specified by the Defence of India Rules. In section G. Jaisinghani vs Union of India & ors.(1) Ramaswami J. speaking for the Constitution Bench of this Court observed as under: "In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey 'Law of the Constitution ' Tenth Edn., Introduction ex). 'Law has reached its finest moments ', stated Douglas, J. in United States vs Wunderlick(2), 'when it has freed man from the unlimited discretion of some ruler . Where discretion is absolute, man has always suffered '. It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes(3), 'means sound discretion guided by law. It must be governed by rule, not by humour: It must not be arbitrary, value and fanciful. ' " In the case of Shrimati Indira Nehru Gandhi vs Shri Raj Narain(4) both Ray CJ. and Chandrachud J. laid stress on the rule of law in our constitutional scheme. It would not, in my opinion, be correct to consider rule of law as a vague or nebulous concept because of its description as an unruly horse by Ivor Jennings. Indeed, according to Jennings, the rule of law demands in the first place that the powers of the Executive should not only be derived from law, but that they should be limited by law. Whatever might be the position in peripheral cases, there are certain aspects which constitute the very essence of the rule of law. Absence of arbitrariness and the need of the authority of law for official acts affecting prejudicially rights of individuals is one of those aspects. The power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law. To quote from Halsbury 's Laws of England, Third Edition, Vol. 7, (1) [1967] 2 section C. R. 703. (2) ; (3) at 2539. (4) [19761 2 section C. R. 347 283 para 416, the so called liberties of the subject are really implications drawn from the two principles that the subjects may say or do what he pleases, provided he does not transgress substantive law, or infringe the legal rights of others, whereas public authorities including the Crown) may do nothing but what they are authorised to do by some rule of common law or statute. The essence of rule of law, according to Prof. Goodhart, is that public officers are governed by law, which limits their powers. It means Government under law the supremacy of law over the Government as distinct from Government by law the mere supremacy of law in society generally which would apply also to totalitarian states (See page 42 of constitutional and Administrative Law by Hood Phillips, Third Edition). I may mention that there has been an amendment of article 359 inasmuch as clause (1A) has been added in that article. The effect of the insertion of that clause in article 359 is that while an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing ill that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall. to the . extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects thing done or omitted to be done before the law so ceases to have effect. Clause (1A) thus protects laws and executive actions from any attack on validity on the score of being violative of the fundamental rights mentioned in the Presidential order in the same way as article 358 protects the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency. If the existence of article 358 did not have the effect of dispensing with the necessity for an executive action operating to the prejudice of tile right of a citizen of the authority of law, the same must necessarily be the position after the insertion of clause (1A) in article 359. It is significant that the language of clause (1A) of article 359 in material respect is substantially the same as that of article 358. The language of clause (1A) of article 359 makes it clear that the protection which is afforded by that clause is to such law or executive action is the State would but for the provisions contained in Part III of the Constitution be competent to make or take. The word "competent" has a significance and it is apparent that despite the Presidential order under article 359(1), in the case of executive action the competence of the State to take such action would have to be established. Such competence would, however, be judged ignoring the restriction placed by the provisions of Part III of the Constitution. To put it in other words, clause (1A) of article 359 does not dispense with the necessity of competence to make law or take executive action. The only effect of that clause is that during the period of emergency the restriction placed upon the competence by fundamental rights would not be there. But it would still be necessary to establish the competence dehors the restrictions of the fundamental rights. 284 The matter can also be looked at from another angle. Before any public authority can deprive a person of his life or personal liberty, two requirements are to be satisfied: (1) Power must be conferred by law upon such authority to deprive a person of his life or liberty; and (2) Law must also prescribe the procedure for the exercise of such power. Suspension of the right to move any court for the enforcement of the right under article 21 can at the best impinge upon the second requirement; it cannot affect the first requirement which is a cardinal principle of the rule of law. l am conscious of the fact that though article 21 refers to procedure established by law, there are observations in Gopalan 's case that the article would also cover substantive law for affording protection to life and liberty. What article 21 lays down is that no person shall be deprived of his life or personal liberty except according to procedure established by law. Procedure about the exercise of power of depriving a person of his life or personal liberty necessarily presupposes that the substantive power of depriving a person of his life or personal liberty has been vested in an authority and that such power exists. Without the existence of such substantive power, no question can arise about the procedure for the exercise of that power. It has, therefore, been held that though there is no reference to substantive power in article 21, the said article would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of : that power. The question with which we are concerned is as Lo what is the effect of the suspension of the right to move a court for. the enforcement of the right contained in article 21. The effect. it may possibly be argued, is that consequent upon such suspension if a person is deprived of his life or personal liberty under a law not satisfying the second requirement indicated above, he cannot seek judicial redress on that score. Would it, however, follow from the suspension of such right that no judicial remedy would be available if a personal is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty. The answer to this question in my opinion, should plainly be in the negative. The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The presupposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power. The coexistence of substantive power and procedure established by law for depriving a person of his life and liberty 285 which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding procedure, suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that proposition. The suspension of the right to move any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty, it can no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive personal. The close bond which is there between the existence of substantive power of depriving a person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in article 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power. It is significant that there is a difference in the language of article 21 and that of article 31(1) wherein the framers of the Constitution said that no one shall be deprived of his property save by the authority of; law. In considering the effect of Presidential order suspending the right of a person to move any court for enforcement of right guaranteed by article 21, we should not treat the words "except according to procedure established by law" to be synonymous with save by authority of law". The President can in exercise of powers conferred by article 359(1) suspend when the proclamation of emergency is in operation, the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order. On the plain language of article 359(1), the President has no power to suspend the right to move any court for the enforcement of rights which are not fundamental rights conferred by Part III of the Constitution. Rights created by statutes are not fundamental rights conferred by Part III of the Constitution and as such enforcement of such statutory rights cannot be suspended under article 359(1). Likewise, article 359(1) does not deal with obligations and liabilities which flow from statutory provisions, and it would follow that an order under article 359(1) cannot affect those obligations and liabilities arising out of statutory provisions. Nor can a Presidential order under article 359(1) nullify or suspend the operation of any statute enacted by a competent legislature. Any redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article 359 ( 1 ) and the Presidential order made hereunder. The Presidential order cannot put the detenu in a worse position than that in which he would be if article 21 were repealed It cannot be disputed that if article 21 were repealed, a detenu would not be barred from obtaining relief under a statute in case there is violation of statutory provisions. Likewise, in the event of repeal of article 21, a detenu can rightly claim in a court of law that he cannot be deprived of his life or personal liberty without the authority of law. Article 286 359(1) ousts the jurisdiction of the court only in respect of matters specified therein during the period of emergency. So far as matters not mentioned in article 359(1) and the Presidential order thereunder concerned, the jurisdiction of the court is not ousted. A provision which has the effect of ousting the jurisdiction of the court should be construed strictly. No inference of the ouster of the jurisdiction of the court can not be drawn unless such inference is warranted by the clear language of the provision ousting such Jurisdiction. I may in this context refer to the observations of the Constitution Bench of this Court in the case of K. Anandan Nambiar & Anr. vs Chief Secretary, Government of Madras & Ors(1) Gajendragadkar J. speaking for the Constitution Bench observed: "In construing the effect of the Presidential order, it is necessary to bear in mind the general rule of construction that where an order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution, the said order must be strictly construed in favour of the citizens ' fundamental rights." ; I am also unable to accede to the argument that though the position under law may be that no one can be deprived of his right to life or personal liberty without the authority of law, the remedy to enforce the right to life or personal liberty is no longer available during the period of emergency because of the suspension of right to move any court for enforcement of right conferred by article 21. The basic assumption of this argument is that article 21 is the sole repository of right to life and personal liberty. Such an assumption, as already ` I stated above, is not well founded. This apart, a Presidential order under article 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can it bar access to the courts of persons seeking redress on the score of contravention of statutory provisions. Statutory provisions are enacted to be complied with and it is not permissible to contravene them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be abjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufferance of the official concerned. It is the presence of legal sanctions which distinguishes positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with law. Non compliance with statutory provision entails certain legal consequences. The Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein. When a statute deals with matters affecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the statute would be circumscribed by its provisions, and it would not be permissible to invoke some indefinite general powers of the executive. As observed by Lord Atkinson in (1) ; (oh p. 410). 287 the case of Attorney General vs De Keyser 's Royal Hotel Ltd. ,(l) the constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject. It is also not the result of the Presidential order, as discussed elsewhere, that because of the suspension of the right to move any court for enforcement of right under article 21, the remedy of a writ of habeas corpus ceases to be available against the State. The Presidential order would not preclude a person from challenging the validity of a law or order on grounds other than violation of articles 14, 19, 21 and 22. It may be pertinent to refer to a decision of this Court in the case of Jaichand Lall Sethia vs State of West Bengal(2) wherein the Constitution Bench of this Court observed after referring to the case of Makhan Singh (supra): "It was pointed out that during the pendency of the Presidential order the validity of the ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes articles 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the ordinance or any rule or order made thereunder on; any other ground. If the appellant seeks to challenge the validity of the ordinance, rule or order made thereunder on ally ground other than the contravention of articles 14. 21 and 22, the Presidential order cannot come into operation. It is not also open to the appellant to challenge the order on the ground of contravention of article 19, because as soon as a Proclamation of Emergency is issued by the President under article 358 the provision of article 19 are automatically suspended. But the appellant can challenge the validity of the order on a ground other than those covered by article 358, or the Presidential order issued under article 359(1 ) . Such a challenge is outside the purview of the Presidential order. For instance. a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order. of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred by the statute has been utilised (1) ; (2) [1966] Supp. R. 464. 288 for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy." Similar view was expressed in the case of Durgadas Shirali vs Union of India & ors(1) In G. Sadanandan vs State of Kerala & Anr.(2) the Constitution Bench of this Court speaking through Gajendragadkar CJ. struck down a detention order on the ground that it was mala fide. Our founding fathers made article 226 which confers power on the High Court to issue inter alia writs in the nature of habeas corpus an integral part of the Constitution. They were aware that under the US Constitution in accordance with article 1 section IX the privilege of the writ of habeas corpus could be suspended when in cases of rebellion or invasion the public safety may require it. Despite that our founding fathers made no provision in our constitution for suspending the power of the High Courts under article 226 to issue writs in the nature of habeas corpus during the period of emergency. They had perhaps in view the precedent of England where there had been no suspension of writ of habeas corpus since 1881 and even during tile course of First and Second World Wars. It would, in my opinion, be not permissible to bring about the result of suspension of habeas corpus by a strained construction of the Presidential order under article 359(1) even though Article 226 continues to remain in force during the period of emergency. The writ of habeas corpus ad subjiciendum, which is commonly known as the writ of habeas corpus, is a process for securing the liberty of the subject by affording an effective mean or immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. By it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquire is the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal (see Halsbury 's Laws of England" Vol. 11, Third Edition, page 24). In Greene vs Secretary of State for Home Affairs(3) Lord Wright observed : "It is clear that the writ of habeas corpus deals with the machinery of justice, not the substantive law, except in so far as it can be said that the right to have the Writ is itself part of substantive law. it is essentially a procedural writ, the object of which is to enforce a legal right . The inestimable value of the proceedings is that it is the most efficient mode ever devised by any system of law to end unlawful detainments and to secure a speedy release where the circumstances and the law so required." (1) ; (2) (3) 289 Writ of habeas corpus was described as under by Lord Birkenhead in the case of Secretary of State for Home Affairs vs O 'Brien(1): "It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirtythird year of Edward I. It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege. " The existence of the power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristic of democratic states under the rule of law. The significance of the writ for the moral health of the society has been acknowledged by all jurists. Hallam described it as the "principal bulwark of English liberty". The uniqueness of habeas corpus in the procedural armoury of our law cannot be too often emphasised. It differs from all others remedies in that it is available to bring into question the legality of a person 's restraint and to require justification for such detention. of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom. The great writ of habeas corpus has been for centuries esteemed the best and sufficient defence of personal freedom (see Human Rights & Fundamental Freedoms by Jagdish Swarup, page 60). As article 226 is an integral part of the Constitution, the power of the High Court to enquire in proceedings for a writ of habeas corpus into the legality of the detention of persons cannot" in my opinion, lie denied. Although the Indian Constitution, as mentioned by Mukherjea CJ. in the case of Ram Jawaya Kapur (supra), has not recognised the doctrine of separation of powers in its, absolute rigidity, the functions of the different parts, or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered exercise judicial function in a limited way. The executive however, can never go against the provisions of the Constitution or of any law. To quote the words of Dr. Ambedkar in the Constituent Assembly: "Every Constitution, so far as it relates to what we call parliament democracy requires three different organs of the State, the executive, the judiciary and the legislature. I have ; . not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciay. Nowhere is such a provision to be (1) (609). 22 833 Sup CI/76 290 found That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the State. Consequently, it is to be presumed that those who work the Constitution, those who compose the Legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive, is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution. Similarly if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Court. Therefore my submission is that this is a matter of one organ of the State acting within its own limitations and obeying the supremacy of the other organs of the State. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself. " It was further observed by him: "No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decided between that particular authority and any other authority,, then the decision of that authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with! the interpretation of the judicial organ created by the Constitution." Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land. Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme, it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provisions of the Constitution and the laws made in accordance with those provisions. There is, as already mentioned, a clear demarcation of the spheres of function and power in our Constitution. The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of life and personal liberty in contravention of the statute are brought to their notice. It would also mean that whatever 291 may be the law passed by the legislature, in the matter of life and personal liberty of the citizens, the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it. It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislative and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution. The fact that the government which controls the executive has to enjoy the confidence of the legislature does not detract from the above conclusion. The executive under our constitutional scheme is not merely to enjoy the confidence of the majority in the legislature, it is also bound to carry out the legislative intent as manifested by the statutes passed by the legislature. The Constitution further contemplates that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the courts. The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic , . values affecting life, liberty and the rule of law. More is at stake in these cases than the liberty of a few individuals or the correct construction of the wording of are order. What is at stake is the rule of law. If it could be the boast of a great English judge* that the air of England is too pure for a slave to breathe, cannot we also say with ' I justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law. even if it chooses to act contrary to law or in an arbitrary and capricious manner. The question is not whether there can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat. No one can deny the power of the State to assume vast powers of detention in the interest of the security of the State. It may indeed be necessary to do ' so to meet the peril facing the nation. The considerations of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individuals can only take a secondary place. The motto has to be "Who lives, if the country dies". Extraordinary powers are always assumed by the. government in all countries in times of emergency because of the extraordinary nature of the emergency. The exercise of the power of detention, it is well settled" depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention. There is no antithesis between the power of the *Lord Mansfield in the case of James Sommersett (1772 State Trials page 1) 292 State to detain a person without trial under a law of preventive detention and the power of the court to examine the legality such detention. As observed by Lord Atkin in Rex vs Halliday(l) while dealing with the argument that the Defence of Realm Consolidation Act or 1914 arid the regulation made under it deprived the subject of his right under the several Habeas Corpus Acts, that is all entire misconception. The subject retains every right which those statutes confer upon him to have tested and determined ill a court of law, by means of a writ of Habeas Corpus, addressed to the person in whose custody he may be, the legality of the order or warrant by virtue of which he is given into or kept in that custody. To quote the words of Lord Macmillan in the case of Liversidge vs Anderson(2). "It is important to have in mind that the regulation question is a war measure. This is not to say that the Court sought to adopt in war time canons of construction different from those they follow in peace time. The fact that the nation is at war is no justification for any relaxation of the vigilance of the Courts in seeing that the law is duly observed, especially in a matter so fundamental as the liberty of the subject. Rather the contrary. " In dealing with an application for a writ of habeas corpus, the court only ensure that the detaining authorities act in accordance with the law of preventive detention. The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless. The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared to the possibility of an innocent person being convicted at trial in a court of law. It would be apposite in this context to refer to the observations of Professor Alan M. Dershowitz: The available evidence suggest that our system of determining past guilt results in erroneous conviction of relatively few innocent people. We really do seem to practice what we preach about preferring the acquittal of guilty men over the conviction of innocent men. But the indications are that any system of predicting future crimes would result in a vastly larger number of erroneous confinements that is confinements of persons predicted to engage in violent crime who would not, in fact" do so. Indeed, all the experience with predicting violent conduct suggests that in order to spot a significant proportion of future violent criminals, we would have to reverse the traditional maxim of the criminal law and adopt a philosophy that it is 'better to confine ten people who would not commit predicted crimes, than to release one who would '." (1) (on page 272). ; 293 (see p. 313 Crime, Law and Society by Goldstein and Goldstein) . It would, therefore, seem to be a matter of melancholy reflection if the courts were to stay their hand and countenance laxity or condone lapses in relation to compliance with requirements prescribed by law for preventive detention. In England there was no suspension of the power of the courts to issue a writ of habeas corpus during the First World War and the Second World War. In India also, there was no absolute bar to approaching the courts during the Sino Indian hostilities of 1962 and the Indo Pak wars of 1965 and 1971. It has not been suggested that because of the existence of the powers of the court to issue writs of habeas corpus war efforts were in any way prejudicially affected. The United Nations ' Economic and Social Council endorsed the general agreement reached at the Baguio Seminar that "the writ of habeas corpus or similar remedy of access lo the courts to test the legality and bona fides of the exercise of the emergency powers should never be denied to the citizen". It drew attention to the following passage from the report of the seminar: "All members recognised that in times of emergency it might be necessary to restrict temporarily the freedom of the individual. But they were firmly of the view that, whatever temporary restrictive measures might be necessary, recourse to the courts through the right of habeas corpus or other similar remedy should never be suspended. Rather the legislature could, if necessary,, subject to well defined procedures safeguarding human dignity. authorise the temporary detention of persons for reasons specified in the law. By that means the executive can act as emergency may require but the ultimate judicial protection of individual liberty is preserved. Members hold strongly that it is a fundamental principle that the individual should never be deprived of the means of testing the legality of his arrest or. custody by recourse to judicial process even in times of emergency. If that principle is departed from, the liberty of the individual is immediately put in great peril". l am, therefore, of the view that there is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter, that the Presidential order of June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order. We may now deal with the second question regarding the scope and extent of judicial scrutiny in petitions for writ of habeas corpus relating to persons detained under MISA. For this purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned. According to section 3(1) of MISA, the authorities specified in the sub section may if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreigner powers, or the security of India, or (ii) the security of 294 the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, it is necessary so to make an order that such person be detained. The words 'if satisfied" indicate that the satisfaction of the authority concerned is a condition precedent to the making of a detention order. Unless therefore the authority concerned is satisfied on the material before it than it is necessary to detain a person with a view to prevent him from indulging in any of the specified prejudicial activities, it has no power to make an order for his detention. Section 3 also contains an implied injunction that the said authority shall not detain a person under that section for reasons other than those specified therein. Although the satisfaction contemplated by the sub section is the subjective satisfaction of the authority concerned, it is necessary that it should be arrived at in an objective manner. It is consequently essential that the facts on the basis of which the authority concerned reaches the conclusion that it is necessary to detain a person should have a rational nexus or probative value and by germane to the object for which such detention is allowed under section 3(1) of MISA. In case the facts which are taken into account are extraneous, not germane or do not have any live link or reasonable connection with the object for which the detention order can be made, the order would be liable to be quashed. Even if one out of the many grounds on which a detention order is based is not germane or legally not tenable, the detention order would be quashed because it is difficult to predicate that the detaining authority would have come to the requisite satisfaction even in the absence of that ground. It is plainly not possible to estimate as to how far the irrelevant or untenable ground operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To Say that the other ground which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. A law of preventive detention is not punitive but precautionary. and preventive. The power of detention under such law is base(l on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence. Such a power is exercised because of apprehension of future prejudicial activity on the part of the person ordered to be detained judged in the light of his past conduct and propensity. The order for preventive detention in such cases postulates prior restraint so that the mischief apprehended at the hands of the person ordered to be detained might not materialise. The consequences of waiting and declining to take action against that person till the mischief is actually clone would quite often be disastrous and the nation may in some cases have to pay a heavy price for such abstention. The quantum of material available regarding the conduct and propensity of a person may not be sufficient to warrant his conviction in a court of law for an offence and yet if the material is germane to the object for which detention order can legally be made and the detaining authority is satisfied in view of that material regarding the necessity of making a detention order, such order made by that authority would be upheld as being in accordance with 295 law. It is also not difficult to visualise a situation wherein serious crimes are committed in broad daylight and yet the witnesses to the crime are so much terrified and awestricken that they dare not depose against the culprits in a court of law. In such cases also because of the difficulty of securing the conviction of the culprits, the courts have upheld the detention orders, if the activities of the culprits are of such a nature as has a nexus with the object for which detention order can be made. In a petition for a writ of habeas corpus the courts do not normally question the veracity and sufficiency of the material on the basis of which the authority concerned arrives at the conclusion regarding the necessity of detention. In case the detenu challenges the correctness or truth of the allegations on the basis of which the detention order is made, he should normally do so by means of representation contemplated by clause (5) of article 22. It is legitimate to expect that the authority concerned and the advisory board when the matter comes up before them shall take into account the stand taken by the detenu regarding those allegations. It would be also their function to give consideration to any fresh material which may be produced before them regarding the truth and correctness of those allegations. In a habeas corpus petition, if it becomes apparent on the record from the admission made by the detaining authority in the return or some other evidentiary material of unquestioned authenticity and probative value that some of the alleged facts upon the basis of which detention order is made are non existent, the court would be well justified in quashing the detention order. A, court apart from that cannot go behind the truth of the alleged facts If the material is germane to the object for which detention is legally permissible and an order for detention is made on the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned and hold that the authority concerned should not have arrived at the conclusion regarding the necessity of detention. At the same time, it is necessary that the authority concerned before deciding to detain a person should apply its mind to the facts before lit in a fair and reasonable manner. If the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it, the legitimate inference would be that the authority concerned did not apply its mind to the relevant facts and did not honestly arrive at the conclusion. To use the words of Lord Halsbury in Shrape vs Wakefield (1): " . when it is said that something is to be done with in the discretion of the authorities . that something is to be done according to the rules of reason and justice, not according to private opinion . according to law and not humour. It is to be, not arbitrary, vague" fanciful, but legal and regular. " Likewise, if there were no grounds, as observed by Lord Morton in Ross vs Papadopollos(2), or which the authority concerned could he satisfied, the court might infer either that the authority did not honestly form that view or that in forming it, the authority could not (1) p. 179. (2) (on p. 33). 296 have applied its mind to the relevant facts. The courts would also interfere if the power of detention is exercised malafide, not in good faith or for an ulterior purpose. It would follow from the above that if the power of detention is exercised for an improper purpose, i.e., a purpose not contemplated by the statute, the order for detention would be quashed. Between malice in fact and malice ill law, as observed by Viscount Haldana L.C. in the case of Shearer vs Shields(1), there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned. , he acts ignorantly, and in that sense innocently. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated. The above principle was applied by this Court in detention matters in Bhut Nath vs State of West Bengal(2). Normally, it is the past conduct or antecedent history of a person which shows a propensity or attendency to act in a particular manner The past conduct or antecedent history of a person can, therefore be appropriately taken into account in making a detention order. It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he, is likely in the future to act in a particular manner. In order to justify such an inference. it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time. It would, for instance, be normally irrational to take into account the conduct and activities of a person which took place ten years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on they strength of the said incident which is ten. years old, the authority is satisfied that his detention is necessary. It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities. The nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has links with a particular foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years, the authorities concerned, if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting in a manner prejudicial to the security of India, might well pass a (1) (2) ; 297 detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detaining authority fails to do so, in spite of an opportunity having been afforded to it, a serious infirmity would creep into the detention order (see Rameshwar Singh vs District Magistrate Burdwan & Anr.(1) and Sk. Abdul Munnaf vs State of West Bengal(2) . One other requirement of a valid order of detention is that the grounds of detention which are communicated to the detenu should not be vague so that he may not be handicapped in making an effective representation against the detention order. Both article 22(S) of the Constitution and section 8 ( 1 ) of MISA refer to such representation and provide that the detaining authority shall as soon as may be, and in any case not later than the prescribed period, communicate to the person detained the grounds on which the detention order has been made "and shall afford him the earliest opportunity of making representation against the order". In view of the Presidential order suspending the right of a person to move any court for enforcement of specified fundamental rights, including the one under article 22(5), it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22(S). The Presidential order would, however, not stand in the way of the court quashing the detention order on the score of the infirmity of the vagueness of grounds of detention because of the contravention of section 8 ( 1 ) of MISA. Every law providing for preventive detention contains certain procedural safeguards. It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention. Detention without trial results in serious inroads into personal liberty of an individual. In such cases it is essential to ensure that there is no deviation from the procedural safeguards provided by the statute. In, the matter of even a criminal trial? it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice. The need for strict adherence to strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a (1) ; A. 1. R 298 person even though he is not found guilty of the commission of an offence. To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to preventive detention. The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure. I am, therefore, of the view that it would be wholly inappropriate to countenance any laxity in the matter of strick compliance with procedural requirements prescribed for preventive detention. The observations made in the case of Kishori Mohan vs State of West Bengal(1) have relevance. It was observed by this Court in that case . "The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts. Obviously, such power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be strictly construed. Equally also, the power con feared by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law. Question then arises as to how far are the recitals in the order of detention binding upon the court, and upon whom and to what extent does the onus lie in a petition for a writ of habeas corpus relating to a detained person. In this respect I find that in the case of King Emperor vs Sibnath Banerji(2) the Judicial Committee, speaking through Lord Thankerton" approved the following observation of the learned Chief Justice of the Federal Court: "It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its accuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. " The matter was considered by this Court ' by the Constitution Bench of this Court in the case of G. Sadanandan vs State of Kerala & Anr. (supra) and it was observed as under: "After all, the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority; and so, if a prima facie case is made by the petitioner that his detention is either mala fide, or is the result of the casual approach adopted by the appropriate authority, the (1) A. T, R. (1) 71 1. A. 241 . 299 appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its mala fides, are not well founded. The failure of respondent No. 1 to place any such material before us in the pre sent proceedings leaves us no alternative but to accept the plea made by the petitioner that the order of detention against him on the 20th October, 1965.1 and more particularly, his continued detention after the 20th October, 1965, ale totally invalid and unjustified. " The initial burden is on the detenu to show that at his detention is mala fide or not in accordance with law. If the detenu makes out a prima facie case, the burden shifts on the State and it becomes essential for the State to file a good return. Once substantial disquieting doubts are raised by the detenu in the mind of the court regarding the validity of his detention, it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention. In case the detenu fails to discharge the initial burden, his petition for writ of habeas corpus would be dismissed. Even if the detenu discharges the initial burden and makes out a "prima facie case against the validity of his detention, but the State files a good return and adduces sufficient material before the court to show that his detention is valid, the detenu 's petition would be dismissed. In case, however,, the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention and the State fails to file a good return and does not place sufficient material on the record to show that the detention is valid, a serious infirmity would creep into the State case as might justify interference by the court and release of the detenu. More than that, it is not necessary to say for everything in the final analysis would depend upon the individual facts of the case. We may now turn to the newly added section 16A of MISA. This section was inserted by section 6 of Act 39 of 1975 with effect from June 29, 1975. Subsequently, there was a further amendment of section 16A by Act 14 of 1976 which was published on January 25 1976. According to subsection (1) of section 16A, the provisions of the section would have effect notwithstanding anything contained in MISA or any rules of natural justice during the period of emergency proclaimed on December 3, 1971 and June 25, 1975 or a period or 12 months from June 25., 1975 whichever period was the shortest. Sub sections (2) and (3) provides for the making of a declaration to that effect by the authorities concerned if they are so satisfied on consideration that it is necessary to detain a person for effectively. dealing with the emergency. Sub section (2) deals with cases of persons against whom orders of detention were made under the Act on or after June 25, 1975 but before the coming into force of this section, viz., June 29, 1975? while sub section (3) deals with cases of detention in respect of persons against whom orders for detention were made after the coming into force of the section. The provision to sub sectional (3) provides for review and the necessity of confirmation within fifteen days of the declaration by the State Government in case 300 such declaration is made by an officer subordinate to the State Government. Sub section (2A) provides for deemed approval of a detention order made by an officer subordinate to the State Government in case the State Government makes a declaration that the detention of the person ordered to be detained is necessary for dealing effectively with the emergency. Sub section (4) provides for reconsideration at intervals not exceeding four months of the necessity of detention of a person in respect of whom a declaration is made under sub section (2) or (3). According to sub section (5), in making any review, consideration or reconsideration under sub sections (2), (3) or (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section (2)" or the making or confirming under sub section (3), or the non revocation under sub section (4), of the declaration in respect of him. Sub sections (6) and (7) provide inter alia that sections 8 to 12 shall not apply in the case of a person detained under a detention order to which the provisions of sub sections (2) and (3) apply. Sub section (8) authorises the Central Government whenever it considers it necessary so to do to require the State Government to furnish to the Central Government the information arid materials on the basis of which declaration has been made or confirmed or not revoked and such other information and materials as the Central Government may deem necessary. It would appear from what has been stated above that once a declaration is made with respect to a detenu under sub sections (2). or (3) of section 16A of MISA, the provisions of sections 8 to 12 of MISA would not apply to such a detenu. The result would be that the grounds of the order of detention would not be disclosed to the person affected by the order. There would also be no reference of the case of such a person to the Advisory Board. We may now turn to sub section (9) of section 16A. According to this sub section, notwithstanding anything contained in any other law or any rule having the force of law, the grounds on which an order of detention is made or purported to be made under sections against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (2) or a declaration or confirmation under sub section (3) or the non revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground information or material or any document containing such ground information or material. According to clause (b) of sub section (9) no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material. 301 So far as the impact of section 16A(9) is concerned on the extent of the power of judicial scrutiny in writs of habeas corpus relating to persons detained under MISA, I am of the view that the matter should not be gone into in these appeals for the following reasons. Out of the nine High Courts which dealt with the question of maintainability of petitions for writs of habeas corpus, only two, namely, Rajsthan High Court and Nagpur Bench of Bombay High Court have gone into this aspect, while the other seven have not expressed and view in the matter. Both Rajasthan High Court and Nagpur Bench of the Bombay High Court have upheld the validity of section 16A(9). While Rajasthan High Court has not read down the provisions of section 16A(9) the Nagpur Bench of the Bombay High Court has expressed the view that it would be permissible for the High Court to can for and peruse the grounds in certain circumstances. The Nagpur Bench, it may be pointed out, dealt with the provisions of section 16 A(9), as they then existed before its amendment by Act 14 of 1976. Before us arguments have been addressed on behalf of the respondents challenging the validity of section 16,A(9) on the ground that it is violative of article 226 inasmuch as it prevents the High Court from effectively exercising the jurisdiction under that article to issue was of habeas corpus. In my opinion, it would not be permissible in these appeals against orders disposing of preliminary objection to decide the question of validity of section 16A(9). It is manifest that any decision on the question of the validity of section 16A(9) would result either in upholding the validity of the provision or in striking it down. The latter course is out of question for it would be plainly impermissible to strike down the provision in appeal by the State when the validity of such provision has been upheld by the High Court. Like wise, it would he impermissible in these appeals to record a finding that the ambit of judicial scrutiny is greater than that found by the High Court even though this Court on consideration of the relevant provisions comes to that conclusion. There is no appeal before us by the detenu respondents. This Court in appeal by the State cannot enlarge the area of the unfavourable decision qua the State and make its position worse compared to what it was before the filing of the appeal. Procedural propriety in matters relating to appeals forbids such a course. The appeals before us are primarily against the orders of the High Court disposing of the preliminary objections relating, to the maintainability of petitions under article 226 for writs of habeas corpus in view of the Presidential order. The question of extent of judicial scrutiny in the light of section 16A should, in my opinion be gone into when the whole matter is at large before us and we are not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing. It is primarily for the High Courts before which the matters are pending to decide the question area of judicial scrutiny in the light of section 16A(9), as amended by Act 14 of 1976. A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A, as amended by Act 14 of 1976" should, in my opinion, be avoided. 302 The observations on pages 658 and 659 in the case of J. K. Synthetics Ltd. vs J. K. Synthetics Mazdoor Union (1) can be of no assistance in this case because what has been laid down there is that the respondent can support an award of an Industrial Tribunal on a ground no adopted by the Tribunal so long as in the final result the amount award ed is not exceeded. The observations in that case do not warrant the enlargement of the area of unfavourable decision against an appellant in the absence of an appeal by the respondent. Nor does that decision justify adoption of a course which might conceivably lead to such result. Likewise, no assistance can be derived from clause (3) of article 132 of the Constitution because of the fact that the appeal against the order of the Rajsthan High Court has been filed in pursuance of a certificate of fitness granted under that article. The only point on which the Rajasthan High Court has decided against the appellant is regarding the maintainability of the petition under article 226. The effect of article 132(3) would only be that it would be permissible to assail the order of the High Court on the question of Maintability of the petition under article 226 not only on the ground relating to the question of as to the interpretation of the Constitution mentioned in the order granting the certificate but also with the leave of this Court on other grounds. It is, however, not the effect of article 132(3) that if the High Court in the impugned order decides two distinct preliminary issues, one in favour of one party and the other in favour of the opposite party, this Court in an appeal by only one party against that order of the High Court can also go into the correctness of the issue which has been decided in favour of the appellant. The fact that the respondents in these appeals have as a matter of abundant caution addressed arguments on sub section (9) of section 16A, so that the submissions of the appellants on that point may not remain unanswered, would not justify departure from the principle that this Court cannot, in the absence of an appeal by the respondent, adopt a course which might conceivably enlarge the area of unfavourable decision against the appellant. I am, therefore, of the view that the appropriate occasion for going into the question of the constitutional validity of section 16A(9) of MISA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would be when the State or detenu, whosoever is aggrieved, comes up in appeal against the final judgment in any of the petitions pending in the High Courts. The whole matter would then be at large before us and we would not be inhibited by procedural and other constraints referred to above. It would not, in my opinion, be permissible or proper to short circuit the whole thing and decide the matter by bypassing the High Courts who are seized of the matter. I may now summarise my conclusions: (1) Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. (2) Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or personal liberty without the authority of law. That is (1) ; 303 the essential postulate and basic assumption of the rule of law in every civilised society. (3) According to law in force in India before the coming into force of the Constitution, no one could be deprived of his life or personal liberty without the authority of law. Such a law continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution. (4) Startling consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty. If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence. The construction which does not result in such consequences is not only possible, it is also preeminently reasonable. (5) In a long chain of authorities this Court has laid stress upon the prevalence of the rule of law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law. There is no valid reason to depart from the rule laid down in those decisions some of which were given by Benches larger than the Bench dealing with these appeals. (6) According to article 21, no one can be deprived or his life or personal liberty except in accordance with procedure established by law. Procedure for the exercise of power of depriving a person of his life or personal liberty necessarily postulates the existence of the substantive power. Then article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as wen as the procedure for the exercise of such power. When right to move any Court for enforcement of right guaranteed by article 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power. (7) A Presidential order under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the fundamental rights mentioned in the order. Rights created by statutes being not fundamental rights can be enforced during the period of emergency despite the Presidential order. Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order. Any redress sought from a court of law on the score of breach of statutory pro visions would be outside the purview of article 359(1) and the Presidential order made thereunder. 304 (8) Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the presidential order in question (9) There is no antithesis between the power of the State to detain a person without trial under a law of preventive detention and the power of the court to examine the validity of such detention. In exercising such power the courts only ensure that the detaining authority acts in accordance with the law providing for preventive detention. (10) There is no sufficient ground to interfere with the view taken by an the nine High Courts which went into the matter that the Presidential order dated June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders. (11) The principles which should he followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established. (12) The appropriate occasion for this Court to go into the constitutional validity of section 161A(9) of MISA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would be when the State or a detenu whosoever is aggrieved, comes up in appeal against the final judgment in any of the petitions pending in the High Courts. The whole matter would then be at large before this Court and it would not be inhabited by procedural and other constraints. It would not be permissible or proper for this Court to short circuit the whole thing and decide the matter by by passing the High Courts who are seized of the matter. Before I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethern has not stood in the way of my ex pressing the same. I am aware of the desirability of unanimity, if possible. Unanimity obtained without sacrifice of conviction comments the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes (1) judges are not there simply to decide cases, but t to decide them as they think they should be decided, and while if may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a court of last resort to use his words, is an appeal lo the brooding spirit of the law to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. The appeals are disposed of accordingly. (1) Prophets with Honor by Alan Barth, 1974 Ed. P. 3 6. 305 BEG, J. The two principal questions placed before us for determination in these appeals from decisions given by various High Courts, on certain preliminary objections to the maintainability and hearing of Habeas Corpus petitions, under Article 226 of our Constitution, have been stated as follows by the Attorney General of India: 1. Whether, in view of the Presidential order dated June 27, 1975, under Clause (1) of Article 359, any writ petition is maintainable under Article 226, before a High Court for Habeas Corpus to enforce the right to personal liberty of a person detained under the on the ground that the order of detention or the continued detention is, for any reason, not under or in compliance with ? 2. If such a petition is maintainable, what is the scope or ex tent of judicial scrutiny, particularly, in view of the aforesaid Presidential order which covers, inter alia, Clause (5) of Article 22, and also in view of sub section (9) of Section 16A of the ? If the only reason on which a detention is assailed, could be that the provisions of the 26 of 1971 (hereinafter referred to as 'the Act ') have not been complied with, there could be little difficulty in holding, having regard to the natural and obvious meaning of the suspension of "the right to move any Court for the enforcement" of the fundamental right to personal liberty, protected by Article 21 of the Constitution, that this right, with whatever it evolved from or embraced, could not be the basis for any claim to its enforcement during the Emergency. An that would then remain to consider would be the exact point at which and the form in which the order of the Court denying the petitioner an enforcement of the right could be passed. The last part of the first question, however, also brings into the area of discussion the case where a petitioner alleges that "for any reason" his detention fans completely outside the Act. Detenues allege not merely infraction of some provision of the Act, under which a detention is ordered, but, more often, that the detention is for extraneous reasons falling either entirely or partially outside the Act. "Malafides" is almost invariably alleged presumably on the assumption that almost everything the detenue considers either wrong or erroneous or improper must be "mala fide". Arguments addressed to us on behalf of the detenues have raised a host of hypothetical questions, such as: What would be the position if the order of detention, on the face of it, either fans outside the provisions of the Act or is made mala fide ? Would a detention order, by any Government servant without even an ostensible or purported statutory authority to support it, not stand on the same footing as a detention by a private person? Would remedy against detention which may be patently illegal. without need for any real investigation into facts at an also be barred ? Could remedy by way of a writ of Habeas Corpus against any illegal detention by any one in this country, 22 833 Sup CI/76 306 under any circumstances, be held to be suspended during the Emergency ? The next steps in the argument on behalf of detenues consisted of attempts to show that there could be no distinction in principle, between an order which is, prima facie, ultra vires or made mala fide and one which can be shown to be that only if the facts and circumstances surrounding a detention were fully investigated in a Court. Processes of reasoning, based on hypothetical cases put forward for consideration by us, by learned Counsel for tile detenus seek, by stages to so expand the area of maintainability and investigation on claims for writs of Habeas Corpus in the High Courts that, if we accept them, the result would be that Article 359 of the Constitution and the Presidential orders of 1975 made under it would become entirely meaningless and infructuous. It seems to me that the two questions set out above, could very wen be compressed into a single question: To what extent, if at an, can a High Court be moved to assert a right to personal liberty, by means of a petition under Article 226 for a writ of Habeas Habeas Corpus during the operation of the Presidential order of 27th June, 1975 ? Speaking for myself, I am extremely reluctant to embark on a consideration and decision of any "pure" question of law. In cases coming up before Courts, no question of law can be "pure" in the sense that it has no bearing on the facts of a particular case to which it must necessarily be related. Neither Article 136 nor Article 226 of the Constitution is meant for the exercise of an advisory jurisdiction. Attempts to lay down the law in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions mentioned above, but may result in misapplications of the law declared by Courts to situations for which they were not intended at an. Learned Counsel for the detenus have tried to induce us to answer many questions which may arise in purely hypothetical situations some of which seem to me to be far removed from the realms of reality. We cannot assume that those who exercise powers of detention are bound to do so, as a rule, as though they were demented reports without any regard for law, justice, reason, or honesty of purpose, solely for achieving objects other than those which are really meant to be served by the Act. Both sides, however, desire that we should answer questions indicated above on the assumption that the provisions of law contained in the Act have been infringed, in some way, by the detaining authorities in a particular case. They want us to indicate degrees of transgression of the provisions of the Act, if any, which can justify interference by the High Courts in Habeas Corpus proceedings. As the facts of no particular case are before s, we can only answer the questions before us with the help, where necessary, of appropriate hypothetical examples. The learned Attorney General has, very frankly and honestly, submitted that there was no need to bestow upon actions of the detaining authorities the protection given to them only for the duration of the Emergency proclaimed under Article 352(1 ) of the Constitution, if the 307 President did not really intend to confer certain immunities from judicial scrutiny and interference upon detentions by executive authorities, even if some of them were contrary to the letter of the law, so that certain over riding interests of national security and independence may not be jeopardized. The Attorney General 's submission is that the risks of misuse of powers by the detaining officers and authorities, which are certainly there, must be presumed to have been over ridden by the higher claims of national security which the proclamation of emergency denotes. It was pointed out that a citizen, or other person who may have been unfairly or illegally detained due to some unfortunate misapprehension or error, does not loose his remedy altogether. Only his right to move a Court for the enforcement of any of the rights conferred by Part III of the Constitution would be suspended for the time being. He could always approach higher Governmental authorities. All of them could not be so unreasonable as to deny redress in a case of genuine injustice. The propositions thus stated appear to be so reasonable and are so wen founded, as I shall endeavour to show later, in the course of this judgment, in the Constitutional and legal history and the case law of other countries, during periods of Emergency, from whose constitutions what has been described as the "ancient writ of habeas Corpus" has been taken and transplanted into our Constitution that it may seem somewhat surprising that their correctness should be doubted or denied at an. The propositions have, however, not only been vehemently assailed but the attacks upon them were sought to be supported by attempts to engraft theories upon our Constitution which, if accepted, win destroy the basic principle of the supremacy of the written Constitution which I attempted, in Smt. Indira Nehru Gandhi vs Shri Raj Narain (1), to explain at some length. If the clear and unequivocal language of Article 359(1) of our Constitution is the bed rock on which the Attorney General 's arguments to sustain the preliminary objections to the maintainability of Habeas Corpus petitions during the Emergency rest, learned Counsel for the detenus have put forward theories of a nebulous natural law and a common law which, on close scrutiny, appear to me to resolve themselves into what according to the notions of learned Counsel for the detenus, the law ought to be. Strenuous attempts have been made to dress up these notions in the impressive garb of the "Rule of Law" which evokes the genuine and our and respectful devotion of lawyers and public spirited citizens. But, the mere veneration of a caption without an understanding of what it really denoted in the past and what it means or should mean today, is another name for obfuscation of thought. Even in England, the reputed home of the Rule of Law, the rather loose, general, and in exact meaning given to the term by Dicey to describe and glorify certain assumedly special characteristics of the English Constitution, have given place to more realistic, critical, and scientific views of the "Rule of Law" and what Dicey meant: by it. Sir (1) [1976] 2 S.C.R.347. 308 Ivor Jennings, in "The Law and the Constitution" (3rd Edn. p. 296) pointed out: . "Dicey honestly tried (in The Law of the Constitution, not in his polemical works) to analyse, but, like most, he saw the Constitution through his own spectacles, and his vision was not exact. The growth of the new functions of the State has made much of his analysis irrelevant. Moreover, the argument from history or, what is the same thing, from the Constitution must be used with discretion. To say that a new policy is 'unconstitutional ' is merely to say that it is contrary to tradition, and it must always be considered whether the tradition is relevant to new circumstances. Even if the rule of law as Dicey expounded it had been exact, it would not be a sufficient argument to say of any proposal, as the Committee on Ministers ' Powers said on a minor point, that it was contrary to the rule of law". Those who glibly talk of the Rule of Law, as expounded by Dicey, forget that Prof. Dicey had made a very gallant and effective (I would not like to use here a colloquial expression, "desperate", to describe it) attempt to repel the correctness of what he caned "the dark saying" of de Tocqueville that the largely conventional "English Constitution has no real existence 'elle n 'existe point)" (See: page 22 of the Dicey 's "Introduction to the Study of the Law of the Constitution" 10th Edn.). He was at pains to show that the Constitutional Law of Eng land did exist. It lived and functioned not only in the hearts and minds of Englishmen, also reflected in Parliament, but through the force of healthy conventions and highly disciplined habits of life and thought of the British people. These conventions and habits had, behind them, the sanction not only of a powerful and intelligent public opinion but also of the control by the Houses of Parliament, wrested from the Crown in the course of historic constitutional struggles, over the finances of the nation. Dicey distinguished this peculiarly British Constitutional Law from "political ethics" which, according to him, was "mis called Constitution Law". It was not, he pointed out, International law, the "vanishing point" of law. Dicey succeeded, at least so far as his statement of the Rule of Law is concerned, in doing nothing more than indicating, under this heading, certain common guiding principles for Courts as wen as Legislators to follow when they needed these. Hence, he said that the Rule of law and the legal Sovereignty of Parliament were allies in England. According to him, both these principles so operated as to always support and strengthen each other. This idealistic rosy optimism, reflecting the Whig tradition of minimum interference with individual freedoms and representing the Constitutional jurisprudence of the hey day of a laissez faire British economic prosperity, was destined to be displaced by the more "down to the earth" pragmatism of the Twentieth Century Britain, attempting to meet economic difficulties and distress through socialistic planning and to build a welfare State by making laws which appeared to those brought up on the traditional postulates of Dicey 's Rule of Law to deny the validity of its basic assumptions. 309 The first of these assumptions or meanings was that any depravation of personal liberty or property must not only be for a "distinct breach of law" but "established in the ordinary legal manner before the ordinary Courts of the land". He contrasted this "with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint". He concluded, from what he regarded as a basic Feature of the British Constitution, that an modes of dispensing justice, through specialised administrative authorities and bodies, must necessarily be autocratic and unfair. He compared the British system with the one under which Voltaire, in 1717, was "sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiments of which he did not agree". The second assumption of Dicey 's Rule of law was. "Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals". He overlooked the not infrequent injustice caused in England of his time, due to want of adequate remedies against the servants of the Crown, by applications of the maxim: "The King can do no wrong". He wrote "With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen". The third assumption on which Dicey 's Rule of Law rested was what he caned "the predominance of the Legal Spirit" which he described "as a special attribute of English Institutions". He explained: "We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result from the general principles of the constitution". Dicey observed: "There is in the English constitution an absence or these declarations or definitions of rights so dear to foreign constitutionalists. Such principles? moreover, as you can discover in the English constitution are, like an maxims established by judicial legislation, mere generalisations drawn either from the decisions or dicta of judges, or from statutes which, being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament. To put what is really the same thing in a somewhat different shape, the relation of the rights of individuals to the principles of the constitution is not quite the same in countries like Belgium, where the Constitution is the result of a legislative act, as` it is in England, where the constitution itself is based upon legal decisions". 310 Thus, Dicey depicted the British Parliament, while performing even its legislative functions, as if it was a Court following the path shown by judges fined with the spirit of law and with meticulous concern for an the canons of justice. He concluded: "Our Constitution, in short, is a Judge made Constitution and it bears on its face an the features, good and bad, of judge made law". Dicey thought that the difference between the unwritten British Constitution and a written Constituion, such as that of Belgium, was not merely a formal one, but revealed entirely differing approaches to basic freedoms. He observed . "The matter to be noted is, that where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away. Where, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a through revolution in the institutions and manners of the nation." After making the distinction mentioned above, Dicey deals with "the so called suspension of the Habeas Corpus Act". He said that it bears "a certain similarity to what is caned in foreign countries 'suspending the constitutional guarantees ' ". He euphemistically, explained: "But, after an, a statute suspending the Habeas Corpus Act falls very far short of what its popular name seems to imply; and though a serious measure enough, is not, in reality, more than a suspension of one particular remedy for the protection of personal freedom. The Habeas Corpus Act may be suspended and yet Englishmen may enjoy almost all the rights of citizens. The constitution being based on the rule of law, the suspension of the constituion, as far as such a thing can be conceived possible, would mean with us nothing less than a revolution". If Dicey, bewitched by the beauties of an unwritten British Constitution could have been shocked by any modern transgressions of the basic principles of his "Rule of Law" in the Introduction to later editions of his book, Dicey modified his earlier views, to some extent, about. the nature and purposes of "Droit Administratif", accepted the inevitability of change, and noticed the logical consequences of what he himself had described, in his "Law and opinion in England", as the Collectivist or Socialistic trend he would have been even more shocked by the proposition that the cherished principles of his Rule ' of Law could override the statute law which the British Parliament could make and unmake in the exercise, of what Dicey called the "Sovereignty of Parliament". The truth is that Dicey did not, at first visualise the possibility of any conflict between the Rule of Law and the principles of Parliamentary Sovereignty in England. And, correctly understood and applied, there should not be serious conflict between them. But, are principles always correctly understood and applied ? 311 Jennings critically commented upon Dicey 's views (See: "The Law and the Constitution" 3rd Edn. p. 294) as follows: The rules which in foreign countries naturally form part of a constitutional code "mostly do not exist in England, for the recognised (or legal) supremacy of Parliament presents any fundamental distribution of powers and forbids the existence of fundamental rights. The supremacy of Parliament is the Constitution. It is recognised as fundamental law just as a written constitution is recognised as fundamental law Various Public., authorities the Crown, the Houses of Parliament, the courts, the administrative authorities have powers and duties. Most of them are determined by statute. Some are traditional, and so are 'determined ' by the common law. The powers of administrative authorities in respect of 'fundamental liberties ' are mainly contained in statutes. But even if they were not, I do not understand how it is correct to say that the rules are the consequence of the rights of individuals and not their source. The powers of the Crown and of other administrative authorities are limited by the rights of individuals; or the rights of individuals are limited by the powers of the administration. Both statements are correct; and both powers and rights come from the law from the rules". Thus, Jennings pointed out that what was material was the existence of rules, as a part of Constitutional law, and not their sources or forms. He tried to show that the basic rule being the supremacy of Statutory law that was "The Constitution" in Britain. No other rule could compete with it or stand in its way or be a substitute for it. Dicey, on the other hand, believed that the difference in sources and forms of rules made a great difference in approach and outlook. But, Dicey also treated the judge made Rule of Law and the rights "guaranteed" by a written constitution as alternatives or different modes of protecting same species of rights. He never dreamt of looking upon them both as simultaneously existing and available Under a written Constitution in addition to what such a Constitution contained. Dicey, indicated the basic distinction between the Constitutional position in England" with an unwritten Constitution where the supremacy of Parliament prevailed, and that in the United States of America, with a written Constitution which was supreme. But, despite the differences in the logical consequences of an unwritten constitution, in a country so largely governed by its conventions and disciplined habits of life and thought as Dicey 's England, and those of the written Constitution of the U.S.A., one common feature, snared by both English and American systems, was the large amount of judicial Constitutional law making which took place in both countries. In Britain, although the Parliament is the supreme law giver, yet, as Dicey pointed out, there was, out of respect for the judicial function and the Rule of Law, an acceptance of judge made law as the constitutional law of the land which the Parliament could alter, whenever it 312 liked, but did not think of altering presumably because it served very wen, the needs of British people who took pride in their judge made law. Of course, if Parliament did make a law on any subject and it has made some laws on Constitutional matters also the Courts could not think of questioning the validity of the law so made. In America, not only was the doctrine of judicial review of legislation, established by Marshall, C. J., in Marbury vs Madison (1) but the "due process" clauses, introduced by the 5th amendment (1791) and by the 14th amendment (1868) of the American Constitution, became the most prolific sources of judicial law making. They gave to the American Courts an amplitude of power to indulge in what is caned "judicial legislation" which our Constitution makers, after considerable debate, deliberately eschewed by using the expression ' 'procedure established by law" instead of the "due process of law". Willis, adverting to the very skeletal character of the American Constitution, said: "Our original Constitution was not an anchor but a rudder. The Constitution of one period has not been the Constitution of another period. As one period has succeeded another, the Constitution has become larger and larger." In A. K. Gopalan vs The State of Madras,(2) the earliest case in which a comprehensive discussion of fundamental guaranteed freedoms in our Constitution took place, Kania, C. J., after referring to observations of Munro, of James Russen Lowen, of Winis, and of Cooley, on the American Constitution, noted about the nature of our Constitution (at p. 109): "The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other". The position in this country is clearly one in which the fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of an other laws. It seeks to deter mine. the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial function, though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current Emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention. The wider the sweep of the provisions of Article 21 and 22 the more drastic must be the effect of suspending their enforcement. After an, suspension does not and cannot mean retention under a disguise. (1) ; (2) ; @ p. 109. 313 The only Rule of Law which can be recognised by Courts of our country is what is deducible from our Constitution itself. The Constitution is, for us, the embodiment of the highest "positive law" as wen as the reflection of an the rules of natural or ethical or common law Lying behind it which can be recognised by Courts. It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution. I am not aware of any Rule of Law or reason which could enable us to do that. What we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind our existing Constitution, which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes. And, we were asked by some learned Counsel, though not by an, to perform this ambitious task of judicial Constitution making without even using the crutches of implied imperatives of our Constitutional provisions as though we had some plenary legislative Constituent powers. Fortunately, Judges in this country have no such powers. And, those who are meant to so function as to keep the other authorities and organs of State within the limits of their powers cannot themselves usurp powers they do not possess. That is the path of descent into the arena of political controversy which is so damaging for the preservation of the impartiality and prestige of the Judicial function. We cannot, therefore, satisfy those who may feel the urge, as Omar Khayyam did "to shatter" what they regard as "this sorry scheme of things entire" and to "remould" it nearer their "heart 's desire" '. I think we must make it clear that the spirit of law or the Rule of Law, which we recognise, cannot, however ominously around like some disembodied ghost serving as a substitute for the living Constitution we actually have. It has to be found always within and operating in harmony with and never outside or in contact with what our Constitution enjoins. An that we can do is to faithfully explain what the Constitution and its spirit mean. We cannot alter or twist these. The distinction made above between law as it exists and as it has to be recognised and enforced by the State 's judicial organs, and "the law", if we may can it that at an, which could only constitute some rules of ethics but could not be enforced at an, whatever may be its moral worth, was thus stated by John Codman Hurd in his "Law of Freedom and Bondage in the United States" (Negro Universities Press New York (Vol. I, at p. 3): "Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced in or by the win of society or the state. The Science of what rule ought to be made operative by the win of the state is a different thing; it is a science of rules regarded only as existing, whether operative in civil society that is enforced or not. A rule made operative by the authority of society, or of the state, is a rule identified with the expressed win of so 314 ciety or of the State. The win of the state, indicated in some form of expression, is the law, the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the win of the state so indicated. What the state wins is the conterminous measure of law, no pre existing rule is the measure of that win". John Codman Hurd went on to point out that judicial authorities constituted by the State can only carry out the mandates of the positive law which, for purposes of enforcement, must be deemed to embody an the pre existing enforceable natural and ethical values. Enforceability, as an attribute of a legal right, and the power of the judicial organs of the State to enforce the right, are exclusively for the State, as the legal instrument of Society, to confer or take away in the legally authorised manner. It follows from these basic premises of our Constitutional jurisprudence that Courts cannot, during a constitutionally enjoined period of suspension of the enforceability of Fundamental Rights through Courts, enforce what may even be a "fundamental right" sought to be protected by Part III of the Constitution. The Attorney General has, very fairly and rightly, repeatedly pointed out that no substantive right, whether declared fundamental or not. except the procedural rights converted into substantive ones by Article 32. could be suspended. Even the enforcement in general of an such rights is not suspended. Even the enforcement of specified rights through Courts is suspended for the time being. The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions: firstly its recognition by or under the Constitution as a right. and, secondly, possession of the power of its enforcement by the judicial organs. Now, if a right is established, on facts, as a right, it will certainly satisfy the first condition. But, if the right is unenforceable, because the power of its enforcement by Courts is constitutionally suspended or inhibited, for the duration of the Emergency, its mere recognition or declaration by Courts, either as a right or as a fundamental right, could not possibly help a petitioner to secure his personal liberty. Article 226 of the Constitution is not meant for futile and unenforceable declarations of right. The whole purpose of a writ of Habeas Corpus is to enforce a right to personal freedom after the declaration of a detention as illegal when it is so found upon investigation. It may be that many moral and natural obligations exist outside the Constitution and even outside any positive law this is not denied by the learned Attorney General at an but, their existence is not really relevant for purposes of petitions for writs of Habeas Corpus which lie only to enforce Legally enforceable rights. Neither the existence nor the possibilities of denials of any rights by the detaining officers of the State, due to frailities of human nature and errors of judgment, are denied by the Attorney General. ALL that is denied is the correctness of the assertion that they are enforceable, during the period of Emergency, through Courts, if they fan within the purview of rights whose enforcement is suspended. 315 The result of the few very general observations made above by me, before examining, in greater depth, any of the very large number of connected questions and side issues raised I doubt whether it is necessary or of much use, in view of my opinion on the preliminary issue of enforceability, to consider an of then even if it were possible for me to do so may be summarised as follows . Dicey 's Rule of Law, with special meanings given to it, was meant to prove the existence and peculiarities of the uncodified English Constitutional Law. According to Dicey himself, these features either did not exist elsewhere or were the very objectives of provisions of written Costitutions of other countries. On Dicey 's very exposition, no ordinary Judge made law or common law could survive in opposition to statutory law in England, or, in conflict with a written Constitution where there was one. Enforceability of rights, whether they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs, is governed solely by he term of the written instrument in a constitution such as curs. The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers. In any case, it is difficult to see any such scope when "enforcement" itself is suspended. All we can do is to determine the effect of this suspension. We have now to consider in greater detail: What is it the enforcement of which is suspended and what, if anything remains to be enforced ? In this country, the procedure for the deprivation as wen as enforcement. Of a right to personal freedom is governed partly by the Constitution and partly by ordinarily statutes. Both fan within the purview of procedure". Article 21 of the Constitution guarantees, though the guarantee is negatively framed, that "no person shall be deprived of his life or personal liberty except according to procedure established by law. If an enforcement of this negatively framed right is suspended, a deprivation contrary lo the prescribed procedure is not legalised. The suspension of enforcement does not either authorise or direct any authority to violate the procedure. It has to be clearly understood that who. is suspended is really the procedure for the enforcement of a right through Courts which could be said to flow from the infringment of a statutory procedure. If the enforcement of a right to be free resulting derivatively from both the Constitutional and statutory provisions, based on an infraction of the procedure, which is statutory in cases of preventive detention, is suspended, it seems to me to be impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory. Such a view would, in any opinion, introduced a distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential orders of 1975. If the claim to assert the right is one based on violation Of procedure, the degree of violation may affect the question whether the right to be free is established at all, but, it should not, logically speaking, affect the result where the enforcement of the right, even in a case in which it has become apparent, is suspended. 316 The question, however, which has been most vehemently argued is: Does Article 21 exhaust every kind of protection given to rights to personal freedom ? Another way in which this question was put is Article 21 of the Constitution "the sole repository" of the substantive as wen as procedural rights embraced by the expression "personal liberty" ? one of the contentions before us was that Article 21 does not go beyond the procedural protection to persons who may be deprived of personal liberty. Mr. Jethmalani, learned Counsel appearing for one of the detenues, contended that personal freedom was a by product of the removal of constraints or hindrances to the positive freedom of action of the individual. The contention seemed to be that procedure for depreciation of personal liberty being one of the ways of imposing positive constraints, the removal of a negative procedural protection could not dispense with the necessity to establish a right of the detaining authority under some positive or statutory law to deprive a person detained of his liberty whether the authority concerned followed the right procedure or not in doing so. The argument is that proof of a just and reason able cause, falling within the objects of the Act so as to create a liability to be detained, must precede the adoption of any procedure to detail a person under the Act. A "satisfaction" that one of the grounds of detention, prescribed by Section 3 of the Act, is there, was thus said to be a "condition precedent" to the exercise of jurisdiction to detain. This argument obviously proceeded on a restricted meaning given to the "procedure established by law". It is very difficult to see why the satisfaction, required by Section 3 of the Act, is not really part of "procedure established by law". There is, however, an even more formidable difficulty in the way of this argument. If, as it is undeniable, the procedure under Article 226 is the direct procedural protection, which is suspended by the terms of the Presidential order, read with Article 359, Article 226 win not be available to the detenue at an, for the time being, for showing absence of the required "satisfaction", as a condition precedent to a valid detention order under Section 3 of the Act. If the "right to move any Court" can be suspended Article 359 is very clear on the point there remains no right, for the time being, to an inquiry into conditions which may enable a party to secure release in assertion of rights guarantee either by Article 21 or by other articles whose "enforcement" is suspended. Indeed, the clear object of such a suspension seems to me to be that Courts should not undertake inquiries into the violations of the alleged right. If the fundamental rights in Part III of the Constitution are not suspended, as they obviously are not, but only their enforcement can be and is suspended what is really affected is the power conferred on Courts by Articles 32 and 226 of the Constitution. The power of the Courts is the direct and effective protection of the rights sought to be secured indirectly by Article 21, and perhaps less indirectly, by some other articles and laws. Indeed, it is the basic protection because other protections operate through it and depend on it. If this is curtailed 317 temporarily, the other affected protections become automatically inoperative or ineffective so far as Courts are concerned. It is no answer to say that the Constitutional power of High Courts cannot be affected by a Presidential order under Article 359 which is as much a part of the constitution as Article 226. Both articles were there from the commencement of the Constitution. I do not see how it can be reasonably urged that our Constitution makers did not visualise and intend that the Presidential order under Article 359 must, for the duration of the Emergency, necessarily limit the powers of High Courts under Article 226 albeit indirectly by suspending rights to enforcement of fundamental rights. It is also not possible for a detenue to fan back upon the last part of Article 226 of the Constitution which enables the use of powers given by this Article "for any other purpose". Sq long as that purpose is enforcement of a right which is covered by Articles 14 or 19 or 21 or 22 either separately or conjointly, as the enforcement of each of these is now suspended, the inhibition win be there. Moreover, we have no case before us in which a detenu asks for an order for any purpose other than the one which can only be served by tho issue of a writ of Habeas Corpus. Each detenu asks for that relief and for no other kind of writ or order. Therefore, there is no need to consider 'any other purpose". It is true that some of the learned Counsel for the detenus have strongly relied upon "any other purpose", occurring at the end of Article 226, for enabling the High Court to undertake an investigation suo motu into the question whether the executive is performing its duties. Other Counsel have submitted that such an enquiry such motu can be undertaken by this Court or by a High Court in exercise of powers to issue writs of Habeas Corpus quite apart from the enforcement of the right of a detenu to any writ or order. As I have indicated earlier, I am not prepared to answer purely hypothetical questions, except within certain limits, that is to say, only so far as it is necessary for the purposes of illustrating my point of view. I do not think that the powers of Courts remain unaffected by the suspension of rights or locus standi of detenus. A Court cannot, in exercise of any supposed inherent or implied or unspecified power, purport to enforce or in substance enforce a right the enforcement of which is suspended. To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly. Assuming, for purposes of argument, that there is some unspecified residue of judicial ' power in Courts of Record in this country, without deciding what it could be, as that question does not really arise in cases before us, there must be undeniable facts and circumstances of some very grave, extraordinary, and exceptional character to justify the use of such powers, if they exist at and either by this Court or by the High Courts. So long as the powers of Government are exercised by the chosen representatives of the people, their exercise is presumed to be of the people and for the people. It has to be borne in mind that the validity of the declaration of Emergency under Article 352 has neither been nor can it be constitutionally challenged in view of Article 352(5) 318 of the Constitution. And, the validity of Presidential orders of 1975 under Article 359 has not been questioned. So far, I have only indicated the nature of the problems before us and` my general approach to them. Before specifically answering questions, stated at the outset, I win deal, as briefly as possible, Under the following Six main heads, with such of the very large number of points raised and authorities cited before us as appear to me to be really necessary for answering the questions caning for our decision: (A) "Rights conferred by Part III" of our Constitution from the point of view of Personal Freedom. (B) Power to issue writs of Habeaus Corpus and other powers of High Courts under article 226 of the constitution. (C) The objects of the ( 'the Act ') and the amendments of it. (D) The purpose and meaning of Emergency provisions, particularly Article 359 of our Constitution. (E) The effect of the Presidential orders, particularly the order of 27th June, 1975, on the rights of Detenus. (F) The Rule of Law, as found in our Constitution, and how it operates during the Emergency. (A) "Rights conferred by Part In" from the point of view of personal freedom. It is somewhat difficult to reconcile the language of a purported conferment of rights upon themselves by citizens of India with their political sovereignty. The language of the preamble to the Constitution recites that it is they who were establishing the legally Sovereign Democratic Republic with the objects given there. Of course, some rights are "conferred" even on non citizens, but that does not remove the semantic difficulty which gave rise to some argument before us. It seems to me that if, as this Court has already explained earlier (e.g. by me in Shrimati Indira Nehru Gandhi 's case (supra), the Constitution, given unto themselves by the people, is legally supreme, it win not be difficult to assign its proper meaning to the term "conferred". I do not find the theory unacceptable that There was a notional surrender by the people of India of control over their several or individual rights to a sovereign Republic by means of a legally supreme Constitution to which we owe allegiance. It only means that we recognise that the Constitution is supreme and can confer rights and powers. We have to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms. There has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of "licence" to an, which ends in the exploitation and oppression of the many weak by the few strong, into the actuality of a freedom for an regulated by law or under the law applicable to an. This seems to 319 me to be a satisfactory explanation of the language of conferment used with reference to rights. Apart from the explanation given above, of the language or conferment, the meaning of placing some rights in Part III, whatever be tile language in which this was done, is surely to select certain rights as most essential for ensuring the fulness of lives of citizens. The whole object of guaranteed fundamental rights is to make those basic aspects of human freedom, embodied in fundamental rights, more secure than others not so selected. In thus recognising and declaring certain basic aspects of rights as fundamental by the Constitution of the country, the purpose was to protect them against undue encroachments upon them by the legislative, or executive, and, sometimes even judicial (e.g. Article 20) organs of the State. The encroachments must remain within permissible limits and must take place only in prescribed modes. The intention could never be to preserve something concurrently in the field of Natural Law or Common Law. It was to exclude an other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed there. I have already referred to Dicey 's attempt to show that one of the meanings of the Rule of Law in England was that the law made by the ordinary Courts served purposes sought to be achieved in other countries by means of written Constitutions. This meant that one of the two systems governs the whole field of fundamental rights but not both This very idea is thus put by Keir & Lawson in "Cases in Constitutional Law (5th Edn. p. 11) :" "The judges seem to have in their minds an ideal constitution, comprising those fundamental rules of common law which seem essential to the liberties of the subject and the proper government of the country. These rules cannot be repealed but by direct and unequivocal enactment. In the absence of express words or necessary intendment, statutes win be applied subject to them. They do not override the statute, but are treated, as it were, as implied terms of the statute. Here may be found many of those fundamental rights of man which are directly and absolutely safeguarded in the American Constitution or the Declaration des droits de 1 ' homme". In the passage quoted above, Rules of Natural Justice, which are impliedly read into statutes from the nature of functions imposed upon statutory authorities or bodies, are placed on the same footing as "fundamental rights of men which are directly and absolutely safeguarded" by written Constitutions. There is, however, a distinction between these two types of basic rights. The implied rules of natural justice do not, as has been repeatedly pointed out by us, over ride the express terms of a statute. They are only implied because the functions which the statute imposes are presumed to be meant to the exercised in accordance with these rules. Hence, they are treated as though they were parts of enacted law. This Court has repeatedly 320 applied this principle (see: e.g. State of Orissa vs Dr. (Miss) Binapani Dei & Ors)(1) The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follows from them. They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey 's principles of the Rule of Law is found em bodied. Sometimes, they may be implied and read into legislation dealing with rights protected by Article 19 of the Constitution. They could, at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable. Statutory provisions creating certain types of functions may become unreason able, and, therefore, void unless rules of natural justice were impliedly annexed to them. And, the wen known method of construction is: ut res magis valeat guam pereat" to prefer the construction which upholds rather than the one which invalidates. Thus, rules of natural justice, even when they are read into statutory provisions, have no independent existence. They are annexed to statutory duties or fundamental rights so long as they are not expressly excluded. Their express exclusion by statute may, when the enforcement of fundamental rights. It is not suspended, affect the validity of a statute. But, that is so because of the requirements of Articles 14 and 19 of the Constitution and not because they are outside the Constitution altogether. It is also very difficult for me to understand what is meant by such "Common Law" rights as could co exist and compete with constitutional provisions or take their place when the constitutional provisions become unenforceable or temporarily inoperative. The whole concept of such alleged Common Law is based on an utter misconception of what "Common Law" means. The origin of Common Law in England is to be found in the work done by the King 's Judges, who, through their judicial pronouncements, gave to the people of that country a law common to the whole country in the place of the peculiar or conflicting local customs. Let me quote here from a recent book by Prof. George W. Keeton on "English Law The Judicial Contribution" (at p. 68 69), about what Judges appointed by Henry the II of Anjou did: "It is in his reign that something recognisable as a Common Law begins to emerge. It is an amalgam of Anglo Saxon and Danish customs and Norman laws governing military tenures, both of which are about to be transformed by several mighty agencies the ever expanding body of original writs, of which Glanville wrote; the assizes which Henry introduced and finally, by the activities of his judges, whether 3 at Westminster or on Circuit. It is significant that although for some centuries to come, English law was to remain remarkably rich in local customs, we no longer hear, after t Henry 's reign, of the laws of Mercia, Wessex and Northumbria, but of a Common Law of England that is to say, (1)[1967] 2 section C. R. 625. 321 the law of the king 's courts, about which treatises of the calibre of Bracton and Fleta would be written almost exactly a century later, and as the concluding words of Pollock and Maitland 's great work remind us, they and their judicial colleagues were building, not for England alone but 'for king less common wealths on the other shore of the Atlantic ocean and now, one can perhaps add, for many other commonwealths, too. This we owe ultimately, not to a Norman Conqueror, nor even to a distinguished line of Saxon kings, but to a bow legged and unprepossessing prince of Anjou, of restless energy and great constancy of purpose who built, perhaps, a good deal better than even he knew". Such were the origins of the Common Law in England. It is true that Common Law did try to dig its tentacles into Constitutional Law as well. Chief Justice Coke not only denied to King James the 1st the power to administer justice directly and personally, but he went so far as to claim for the King 's Courts the power to proclaim an Act of Parliament invalid, in Dr. Bonham 's case, if it sought to violate a principle of natural law. Such claims, however, were soon abandoned by Common Law Courts. It is interesting to recall that, after his dismissal, by King James the 1st, in 1616, Sir Edward Coke entered politics and became a Member of the House of Commons in Liskeard. He led a group which resisted Royal claims. He was the principal advocate of the Petition of Rights which Parliament compelled a reluctant King of England to accept in 1628. Courts of justice, unable to withstand Royal onslaughts on their authority, joined hands with Parliament and laid down some of the rules which, according to Dicey, gave the Rule of Law to England. Thus, the judge made fundamental rights, which Parliament would not disturb, out of innate respect for them, existed, legally speaking, because Parliament, representing the people, wanted them. They could not compete with or obstruct the legal authority of Parliament. Coke 's doctrine, however, found expression in a constitution which enabled judges to test the validity of even legislation P ' with reference to fundamental rights. This is also one of the primary functions of Chapter III of our own Constitution. Another function of provisions of this chapter is to test the validity of the State 's executive action. So far as Article 21 of the Constitution is concerned, it is abundantly clear that it protects the lives and liberties of citizens primarily from legally unwarranted executive action. It secures rights to 'procedure established by law '. If that procedure is to be established by statute law, as it is meant to be, this particular protection could not, on the face of it, be intended to operate as a restriction upon legislative power to lay down procedure although other articles affecting legislation on personal freedom might. Article 21 was only meant, on the face of it, to keep the exercise of executive powers in ordering deprevations of life or liberty, within the bounds of power prescribed by procedure established by legislation. 23 833 Sup C I/76 322 The meaning of the expression "procedure established by law" came in for discussion at considerable length, by this Court, in A. K. Gopalan 's case (supra). The majority of the learned James clearly held there that it furnishes the guarantee of "Lex", which is equated with statute law only, and not of "Jus" or a judicial concept of what procedural law ought really to be. The whole idea, is using this expression, taken deliberately from the Japanese Constitution of the advice, amongst others, of Mr. Justice Felix Frankfurter of the American Supreme Court was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law, which, according to the majority view in Gopalan 's case, meant only statute law. The majority view was based on the reason, amongst others, that, according to well established canons of statutory construction, the express terms of "Lex" (assuming, of course, that The "Lex" is otherwise valid), prescribing procedure, will exclude "Jus" or judicial notions or "due process" or what the procedure ought to be. Appeals to concepts of "Jus" or a just procedure were made in Gopalan 's case (supra), as implied by Article 21, in an attempted application of "Jus" for testing the validity of statutory provisions. Although no such question of validity of the procedure established by the Act in ordering actual deprivations of personal liberty has arisen before us, yet, the argument before us is that we should allow use of notions of "Jus" and the doctrine of ultra vires by the various High Courts in judging the correctness of applications of the established procedure by executive authorities to each case at a time when the Presidential order of 27th June 1975 precludes the use of Article 21 by Courts for enforcing a right to personal liberty. Therefore, the question which arises here is whether "Jus" held by this Court. in Gopalan 's case, to have been deliberately excluded from the purview of procedure established by law", can be introduced by Courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other Part of the Constitution. I am quite unable to accede to the suggestion that this could be done. We have been referred to the following passage in R. C. Cooper v, Union of India(1) to substantiate the submission that the decision of this Court in Gopalan 's case (supra), on the question mentioned above, no longer holds the field: "We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything the Constitution which justifies this apparently inconsistent development of the law. In our judgment, the assumption in A.K. Gopalan 's case that certain articles in the Constitution exclusively deal with specific matters and in determining where there is infringement of the individual 's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct. We hold that the (1) ; @ 578, 323 validity 'of law ' which authorises deprivation of property and 'a law ' which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same tests. A citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the general public". It seems to me that Gopalan 's case (supra) was merely cited, in Cooper 's case (supra), for illustrating a line of reasoning which was held to be incorrect in determining the validity of "law" for the acquisition of property solely with reference to the provisions of Article 31. The question under consideration in that case was whether Articles 19(1)(f) and 31(2) are mutually exclusive. Even if, on the strength of what was held in Cooper 's case (supra), we hold that the effects of deprivation upon rights outside Article 21 have also to be considered in deciding upon the validity of "Lex", and that the line of reasoning in Gopalan 's case (supra), that the validity of a law relating to preventive detention must be judged solely with reference to the provisions of Article 21 of the Constitution, is incorrect? in view of the opinion of the majority of learned Judges of this Court hl Cooper 's case (supra), it seem to me that this is hardly relevant in considering whether any claims based on natural law or common law can be enforced. There is no challenge before us based on Article 19, to any provision of the Act. Moreover, now that the enforcement of Article 19 is also suspended, the question whether a law dealing with preventive detention may directly or indirectly infringe other rights contained in Article 19 of the Constitution is not relevant at all here for this additional reason. Mr. Shanti Bhushan, appearing for some of the detenu, seems to have seriously understood the meaning of the majority as well as minority views of Judges of this Court in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala.(1) when he submitted that, as the majority view there was not that natural rights do not exist, these rights could be enforced in place of the suspended guaranteed fundamental rights. One learned Judge after another in that case emphatically rejected the submission that any theory of natural rights could impliedly limit powers of Constitutional amendment contained in Article 368 of the Constitution. Tn doing so, none or us held that any natural rights could impliedly become legally enforceable rights. G Dwivedi, J., in Kesavananda Bharti 's case (supra) said about what could be characterised as a far more "unruly horse" than public policy (at p. 918): "Natural law has been a sort of religion with many political and constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon. Look at the pantheon, and you will observe there: 'State (1) @ 918. 324 of Nature ', 'Nature of Man ', 'Reason, ' 'Cod ', 'Equality ', 'Liberty ', 'Property ', 'Laissez Faire ', 'Sovereignty ', 'Democracy ', 'Civilised Decency ', 'Fundamental Conceptions of Justice ' and even 'War '. The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and Trietschke. The pantheon is not a heaven of peace. Its gods are locked in constant internecine c nflict. Natural Law has been a highly subjective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark: "outstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct opposition to many positive legal orders. There is no positive law that is not in conflict with one or the other of these principles; and it is not possible to ascertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgments of their various authors about what they consider to be just or natural. " If the concepts of natural law are too conflicting to make them a secure foundation for any alleged "right", sought to be derived from it, until it is accepted and recognised by a positive laws notions of what Common Law is and what it means, if anything, in this country, are not less hazy and unsettled. Mr. Setalvad, in his Harnlyn Memorial Lectures on "Common Law in India", treated the whole body of general or common statute law and Constitutional Law of this country as though they represented a codification of the Common Law of England. If this view is correct, Common Law could not be found outside the written constitution and statute law although English Common Law could perhaps be used to explain and interpret our statutory provisions where it was possible to do so due to some uncertainty. Sometimes, Judges have spoken of the principles of "Justice, equity, and good conscience" (See: Satish Chandra Chakramurthi vs Ram Dayal De(1) Waghela Raj Sanji vs Sheik Mashuddirl & ors. (2); Baboo S/o Thakur Dhodi vs Mst. Subanshi W/o Mangal(8), as sources of "Common Law" in this country. One with some knowledge of development of law in England will distinguish the two broad streams of law there: one supposed to be derived from the customs of the people, but, actually based on judicial concepts of what custom is or should properly be; and another flowing from the Court of the Chancellor, the "Keeper of the King 's Conscience", who used to be approached (1) I. L. R. @ 407 410. (2) 14 Indian Appeals p. 89 @ 96. (3) A. I. R. 325 when plain demands of justice failed to be met or caught in the meshes of Common Law, or, were actually defeated by some statute law which was being misused. The two streams, one of Common Law and an other of Equity, were "mixed" or "fused" by statute as a result of the Judicature Acts in England at the end of the last century in the sense that they became parts of one body of law administered by the same Courts, although they are still classified separately due to their separate origins. In Stroud 's Judicial Dictionary, we find (See: Vol. I, 4th Edn. p. 517): "The common law of England is that body of law which has been judicially evolved from the general custom of the realm". Here, all that I wish to indicate is that neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution. They could not be, on any principle of law or justice or reason, virtually added to part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the Emergency which suspends but does not resuscitate in a new form certain rights. A submission of Dr. Ghatate, appearing for Mr. Advani, was that we should keep in mind the Universal Declaration of Human Rights in interpreting the Constitution. He relied on Article Sl of the Constitution, the relevance of which for the cases before us is not at all evident to me. He also relied on the principle recognised by British Courts that International Law is part of the law of the land. Similarly, it was urged, it is part of our law too by reason of Article 372 of the Constitution. He seemed to imply that we should read the universal declaration of human rights into our Constitution as India was one of the signatories to it. These submissions appear to me to amount to nothing more than appeals to weave certain ethical rules and principles into the fabric of our Constitution which is the paramount law of this country and provides the final test of validity and enforceability of rules and rights through Courts. To advance such arguments is to forget that our Constitution itself embodies those rules and rights. It also governs the conditions of their operation and suspension. Nothing which conflicts with the provisions of the Constitution could be enforced here under any disguise. Emergency provisions in our Constitution are, after all, a recognition and extension of the individual 's natural law right of self defence, which has its expression in positive laws, to the State, the legal organisation through which society or the people in its collective aspect, functions for the protection of the common interests of all Such provisions or their equivalents exist in the Constitutions of even the most advanced democratic countries of the world. No lawyer can seriously, question the correctness, in Public International Law, of the proposi 326 tion that the operation and effects of such provisions are matter which are entirely the domestic concern of legally sovereign Slates and ca brook no outside interference. Subba Rao, C.J., speaking for five learned Judges of this Court, in 1. C. Gorakhnath & ors. vs State of Punjab & Anr(1) said: (at p. 789 ): "Now, what are the fundamental rights ? They are em bodied in Part III of the Constitution and they may be classified thus: (1) right to equality (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution. "Fundamental rights ' are the modern name for what have been traditionally known as "natural rights". As one author puts: "they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings, he is rational and moral". They are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. our Constitution, in addition to the well known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights". I do not know of any statement by this Court of the relation between natural rights and fundamental constitutional rights which conflicts with what is stated above. Hidayatullah, J., in Golaknath 's case (supra) observed (at p 877 ): "What I have said does not mean that Fundamental Rights are not subject to change or modification. In the most inalienable of such rights a distinction must be made between possession of a right and its exercise. The first is fixed and the latter controlled by justice and necessity. Take for example article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law '. of all the rights, the right to one 's life is the most valuable. This article of the Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed by a murderer 's conduct as viewed under laws. he deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right". The contents of Article 21 were considered at some length and given a wide connotation by this Court ill Gopalan 's case (supra). Patanjali Sastri, J., held at pages 195 196: (1) ; @ 789. 327 "It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation. This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have occasion to consider the constitutional validity of the impugned Act. It is, however, to be observed that article 19 confers the rights therein specified only on the citizens of India, While article 21 extends the protection of life and . personal liberty to all persons citizens and non citizens alike. Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested. Again, if article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personnel liberty, of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that article 21, like its American prototype in the Fifth and Fourteenth Amendments of the Constitution of the United States, presents an example of The fusion of procedural and substantive rights in the same provision. The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. 'Process ' or 'procedure ' in this context connotes both the act and the manner of` proceeding to take away a man 's life or personal liberty. And the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation". Mahajan, J., also observed at pages 229 230: "Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation. This article gives complete immunity against the exercise of despotic power by the executive. It further gives immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty. It negatives the idea of fantastic arbitrary and oppressive forms of proceedings. The principles therefore underlying article 21 have been kept in view in drafting article 22". 328 Das, J., said at page 295: "If personal liberty as such is guaranteed by any of the sub clauses of article 19(1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19(1) and article 21 gives only an additional protection by prescribing the procedure . according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Constitution does not guarantee to any person, citizen or non citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub clauses of clause (1) of article 19". He also said at p. 306 307: "Article 21, as the marginal note states, guarantees to every person 'protection of life and personal liberty '. As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all. That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution. The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right. The right to life and personal Liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by It will thus be seen that not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal Freedom has been held, by implication, to be covered by Article 21 of the Constitution. In Kharak Singh vs the State of U.P. & Ors(1) he wide import of personal liberty, guaranteed by Article 21, was considered. By a majority of 4 against 2 learned Judges of this Court, it was held that the term "personal liberty", as used in Article 21, is a compendious one and includes all varieties of rights to exercise of personal freedom, other than those dealt with separately by Article 19 which could fall under a broad concept of freedom of person. It was held to include freedom from surveillance, from physical torture, and from all kinds of harassment of the person which may interfere with his liberty. Thus, even if Article 21 is not the sole repository of all personal freedom, it will be clear, from a reading of Gopalan 's case (supra) and (1) [1964] 1 section C. R. 332. 329 Kharak Singh 's case (Supra), that all aspects of freedom of person are meant to be covered by Articles 19 and 21 and 22 of the Constitution. If the enforcement of these rights by Courts is suspended during the Emergency an inquiry by a Court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile. For the reasons indicated above I hold as follows: Firstly, fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other co extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with fundamental rights. Secondly, the object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative, or judicial organs of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions. although their Suspension does not, or itself, take away the illegalities or their legal consequences. Thirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be. In that sense, it could be viewed as, substantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power. Fourthly, taken by itself, Article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State 's agents or officials, although, read with other Articles, it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom. Fifthlty, the most important object or making certain basic rights fundamental by the 'Constitution is to make them enforceable against the State and its agencies through the Courts. Sixthly, if the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them. (B) Power to issue writs of Habeas Corpus and other powers of High Courts under Article 226 of the Constitution Reliance has been placed on behalf of the detenus on the following statement of the law found in Halsbury 's Laws of England (Vol. 11, p. 27, paragraph 15), where dealing with the jurisdiction to issue such writs in England it is said: 330 "The right to the writ is a right which exists at common law independently of any statute, though the right has been confirmed and regulated by statute. At common law the jurisdiction to award the writ was exercised by the Court of Queen 's Bench, chancery and Common Pleas, and, in a case of privilege, by the Court of Exchequer". It is, therefore, submitted that the High Courts as well as this Court which have the same jurisdiction to issue writs of Habeas Corpus as English Courts have to issue such writs at common law The argument seems to me to be based on several misconceptions Firstly, there are no Courts of the King or Queen here to issue writs of Habeas Corpus by reason of any "prerogative" of the British Monarch. The nature of the writ of Habeas Corpus is given in the same volume of Halsbury 's Laws of England, dealing with Crown proceedings at page 24, as follows: "40. The prerogative writ of habeas corpus. The writ of habeas corpus and subjiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of" the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the in stance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal? nor may the writ be used as a means of appeal". It will be seen that the Common Law power of issuing the writ of Habeas Corpus is possessed by only certain courts which could issue "prerogative" writs. It is only to indicate the origin and nature of the writ that the writ of habeas corpus is known here as a "prerogative" writ. The power to issue it is of the same nature as a "prerogative" power inasmuch as the power so long as it is not suspended, may carry with it an undefined residue of discretionary power. Strictly speaking. it is a constitutional writ. The power to issue it is conferred upon Courts in this country exclusively by our Constitution. All the powers of our Courts flow from the Constitution which is the source of their jurisdiction. If any provision of the Constitution authorises the suspension of the right to obtain relief in any type of cases, the power of Courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there. If they cannot issue writs of Habeas Cor pus to enforce a light to personal freedom against executive authorities during the Emergency, the original nature of this writ issuing power comparable to a "prerogative" power, cannot help the detenu. 331 Secondly, as I have already indicated, whatever could be formerly even said to be governed by a Common Law prerogative power becomes merged in the Constitution as soon as the Constitution makes it over and regulates that subject. This is a well recognised principle or law. I will only cite Attorney General vs De Keyser 's Royal Hotel Limited(1). Where Lord Dunedin, in answer to a claim of the Crown based on prerogative, said (at p. 526): None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls unanswerable. He says: "What use could there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative ? ". Thirdly, if there is no enforceable right either arising under the Constitution or otherwise, it is useless to appeal to any general power of the Court to issue a writ of Habeas Corpus. The jurisdiction to issue an order of release, on a Habeas Corpus petition, is only exercisable after due enquiry into the cause of detention. If the effect of the suspension of the right to move the Court for a writ of Habeas Corpus is that no enquiry can take place, beyond finding out that the cause is one covered by the prohibition, mere possession of some general power will not assist the detenu. If the right to enforce personal freedom through a writ of habeas corps suspended, it cannot be said that the enforcement can be restored by resorting to "any other purpose". That other purpose could not embrace defeating the effect of suspension of the enforcement of a Constitutional guarantee. To hold that would be to make a mockery of the Constitution. Therefore, I am unable to hold that anything of the natural of a writ of habeas corpus or any power of a High Court under Article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution, is suspended. (C)The objects of the (the Act) and the amendments of it. As this Court has recently held, in Haradhan Saha & Anr vs The State of West Bengal & ors.(2) preventive detention is to be differentiated from punitive detention. Nevertheless, it is evident, whether detention is preventive or punitive, it necessarily results in the imposition of constraints. which, from the point of view justice to the detenu should not be inflicted or continue without fair and adequate and careful scrutiny into its necessity. This Court pointed out that, Article 22 of the Constitution was designed to guarantee these requirements of fairness and justice which are satisfied by the provisions of the Act. It said in said Haradhan Saha & Anr. (supra) (at p. 784). (1) ; @ 526. (2) ; 332 "Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of a State and the welfare of the Nation. It is not possible to think that a person who is detained will yet be free to move or assemble or form association or union or have the right to reside in any part of India or have the freedom of speech or expression Provision for preventive detention, in itself, is a departure from ordinary norms. It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature. Its object is to prevent a greater danger to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a "jurisdiction of suspicion. " See: Khudiram Das vs State of West Bengal., (1) State of Madras vs V. G. Row; (2) R. vs Halliday (3). It enables executive authorities to proceed on bare suspicion which has to give rise to a "satisfaction", as the condition precedent to passing a valid detention order, laid down as follows in Section 3 of the Act: "3 (1) (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or With a view to making arrangements for his expulsion from India, It is necessary so to do, make an order directing that such person is detained" The satisfactions as held consistently by a whole line of authorities of this Court, is a "subjective" one. In other words, it is not possible to prescribe objective standards for reaching that satisfaction. Although the position in law, as declared repeatedly by this Court, has been very clear and categorical that the satisfaction has to be the subjective satisfaction of the detaining authorities, yet, the requirements for sup ply of grounds to the detenus as provided in Section 8 of the Act, in actual practice, opened up a means of applying a kind of objective test by Courts upon close scrutiny of these grounds. The result has been, according to the Attorney General, that the subjective satisfaction of the detaining authorities has `tended to be substituted by the (1) [1975] 2 section C. R. p. 832 @ p. 842. (2) A. I. R. @ 200. (3) ; @ 275. 333 subjective satisfaction of Court on the objective data provided by the grounds, as to the need to detain for purposes of the Act. The`question thus arose: Did this practice not frustrate the purposes of the Act ? The position of the detenu has generally evoked the sympathy of lawyers and law Courts. They cherish a tradition as zealous protectors of personal liberty. They are engaged in pointing out, day in and day out, the essentials of fair trial. They are used to acting strictly on the rules of evidence contained in the Indian Evidence Act. The possibility of indefinite incarceration, without anything like a trial, not unnaturally, seems abhorrent to those with such traditions and habits of thought and action. There is an aspect which perhaps tends to be overlooked in considering matters which are generally placed for weighment on the golden scales of the sensitive judicial balance. It is that we are living in a world of such strain and stress, satirised in a recent fictional depiction of the coming future, if not of a present already enveloping us. in Mr. Alva Toffler 's "Future Shock", with such fast changing conditions of life dominated by technological revolutions as well as recurring economic, social, and political crises, with resulting obliterations of traditional values, that masses of people suffer from psychological disturbances due to inability to adjust themselves to these changes and crises. An example of such maladjustment is provided by what happened to a very great and gifted nation within having memory. The great destruction, the inhuman butchery, and the acute suffering and misery which many very civilised parts of the world had to pass through, because some psychologically disturbed people led by Adolf Hitler, were not prevented in time from misleading and misguiding the German nation, is still fresh in our minds. Indeed the whole world suffered, and felt the effects of the unchecked aberrant Nazi movement in Germany and the havoc it unleashed when it acquired a hold over the minds and feelings of the German people with all the vast powers of modern science at their disposal. With such recent examples before them, it was not surprising that our constitution makers, quite far sightedly, provided not only for preventive detention in our Constitution but also introduced Emergency provisions of a drastic nature in it. These seem to be inescapable concomitants of conditions necessary to ensure for the mass of the people of a backward country, a life of that decipline without which the country 's security, integrity, independence, and pace of progress towards the objectives set before us by the Constitution will not be safe. I do not know whether it was a too liberal application of the principle that courts must lean in favour of the liberty of the citizen, which is, strictly speaking, only a principle of interpretation for cases of doubt or difficulty, or, the carelessness with which detentions were ordered by Subordinate officers in the Districts, or the inefficiency in drafting of the grounds of detention, which were not infrequently found to be vague and defective, the result of the practice developed by Courts was that detenus did, in quite a number of cases, obtain 334 from High Courts, and, perhaps even from this Court, orders of release on Habeas Corpus petitions on grounds on which validity of criminal trials would certainly not be affected. In Prabhu Dayal Deorah etc etc. vs District Magistrate Kamrup :& Ors. I ventured, with great respect, in my miniority opinion, to suggest that the objects of the Act may be frustrated if Courts interfere even before the machinery of redress under the Act through Advisory Boards, where questions relating to vagueness or irrelevance or even sufficiency of grounds could be more effectively thrashed out than in Courts in proceedings under Article 32 or 226 of the Constitution, had been allowed to complete its full course of operation. In some cases, facts were investigated on exchange of affidavits only so as to arrive at a conclusion that some of facts upon which detention orders were passed did not exist at all. In other cases, it was held that even if a single non existent or vague ground crept into The grounds for detention, the detention order itself was vitiated as it indicated either the effects of extraneous matter or carelessness or non application of mind in making the order. Courts could not separate what has been improperly considered from what was properly taken into account. Hence detentions were held to be vitiated by such detects. In some cases, the fact that some matter ton remote in time from the detention order was taken into consideration, in ordering the detention, was held to be enough to invalidate the detention. Thus, grounds supplied always operated as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in. The reasonableness of the detention became the justiciable issue really decided. With great respect, I doubt whether this could be said to be the object of preventive detention provisions authorised by the Constitution and embodied in the Act. In any case, it was the satisfaction of the Court by an application of a kind of objective test more stringently than the principle of criminal procedure, that a defective charge could be amended and would not vitiate a trial without proof of incurable prejudice to the accused, which became, for all practical purposes, the test of the correctness of detention orders. I have ventured to indicate the background which seems to me to have probably necessitated certain amendments in the Act in addition to the reasons which led to the proclamation of Emergency, the effects of which are considered a little later below. We are not concerned here with the wisdom of the policy underlying the amendments. It is, however. necessary to understand the mischief aimed at so as to be able to correctly determine the meaning of the changes made The Central Act 39 of 1975 which actually came into effect after Emergency added Section 16A to the Act, to sub sections of (1) A. 1. R. 335 which have been the subject matter of arguments before us. They read as follows: "(2) The case of every person (including a foreigner) against whom an order of detention was made under 'this Act on or after the 25th day of June, 1975. but before the commencement of this section, shall, unless such person is sooner released from detention, be viewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub section (1) have been issued (here after in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. (3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effective by with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer May make a declaration to that effect and communicate a copy of the declaration to the person concerned: Provided that where such declaration is made by an officer it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days". Act No. 14 of 1976, which received the Presidential assent on 25th January 1976, added Section 16A(9) which runs as follows: "16A(9) Notwithstanding anything contained in any other law or any rule having the force of law, (a) the Grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any information or materials on which such grounds or a declaration under sub section (2) or declaration or confirmation under sub section (3) or the non 336 revocation under sub section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, on one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material; (b) No person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material". This Section and Section 18 of the Act are the only provisions whose validity is challenged before us. It appears to me that the object of the above mentioned amendments was to affect the manner in which jurisdiction of Courts in considering claims for reliefs by detenus on petitions for writs of Habeas Corpus was being exercised so that the only available means that had been developed for such cases by the Courts, that is to say, the scrutiny of grounds supplied under section 8 of the Act" may be re moved from the judicial armoury for the duration of the Emergency. It may be mentioned here that article 22(5) and 22(6) of the Constitution provided as follows: "22(5) When any person is detained in pursuance of the order made under any law providing for preventive detention, the authority making the order shall, as soon as may he, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 22(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose". The first contention, that Section 16A(9) affects the jurisdiction of High Courts under Article 226, which an order under Article 359(1) could not do, appears to me to, be untenable. I am unable to see how a Presidential order which prevents a claim for the enforcement of a fundamental right from being advanced in a Court during the existence of an Emergency, could possibly be said not to be intended to affect the exercise of jurisdiction of Courts at all. The second argument, that Section 16A(9) amounts to a general legislative declaration in place of judicial decisions which Courts had themselves to give after considering" on the facts of each case, whether Article 22(6) could be applied, also does not seem to me to be. acceptable. The result of Section 16A(9), if valid, would be to leave the presumption of correctness of an order under Section 3 of the Act, good on the face of it, untouched by any investigation relating 337 to its correctness. Now, if this be the object and effect of the amendment, it could not be said to go beyond making it impossible for detenus to rebut a presumptions of legality and validity which an order under Section 3 of the Act, if prima facie good, would raise in any event. The same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as "conclusive proof" that the requirements of Section 3 have been fulfilled. But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists this may have left the question in doubt whether Courts could call upon the detaining authorities to produce the grounds. Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions. In any case, so far as the rights of a detenu to obtain relief are hampered, the question raised touches the enforcement of the fundamental right to personal freedom. Its effect upon the powers of the Court under Article 226 is, as I have already indicated, covered by the language of Article 359(1) of the Constitution. It is not necessary for me to consider the validity of such a provision if it was to be applied at a time not covered by the Emergency, or whether it should be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of "malice in fact" and for reasons completely outside the purview of the Act itself. That sort of inquiry is not open, during the Emergency, in proceedings under Article 226. On the view I take, for reasons which will be still clearer after a consideration of the remaining questions discussed below. , I think that even the issue that the detention order is vitiated by "malice in fact" will not be justiciable in Habeas Corpus proceedings during the Emergency although it may be in an ordinary suit which is not filed for enforcing a fundamental right but for other reliefs. The question of bona fides seems to be left open for decision by such suits on the language of Section 16 of the Act itself which says: "16. No suit or other legal proceedings shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceedings shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act. Section 16 of the Act seems to leave open a remedy by way of suit for damages for wrongful imprisonment in a possible case of what may be called "malice in fact". In the cases before us, we are only concerned with Habeas Corpus proceedings under Article 226 of the Constitution where in my opinion, malice in fact could not be investigated as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty, a fundamental right which cannot be enforced during the Emergency. In Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1) a Constitution Bench of this Court, after pointing out that Article 32(4) contemplated a suspension of the guaranteed right only as provided by the Constitution, said (at p. 450 451 ) : (1) ; at 450. 24 833 Sup CI/76 338 "The order of the President dated November 3, 1962, already set out, in terms, suspends the right of any person to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution, during the period of Emergency Prima facie, therefore, the petitioner 's right to move this Court for a writ of Habeas Corpus, as he has purported to do by this petition, will remain suspended during the period of the Emergency. But even then it has been contended on behalf of the petitioner that article 359 does not authorise the suspension of the exercise of the right guaranteed under article 32 of the Constitution, and that, in terms, the operation of article 32 has not been suspended by the President. This contention is wholly unfounded. Unquestionably, the Court 's power to issue a writ in the nature of habeas corpus has not been touched by the President 's order, but the petitioner 's right to move this Court for a writ of that kind has been suspended by the order of the President passed under article 359(1). 'the President 's order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of articles 21 and 22. Thus, as a result of the President 's order aforesaid, the petitioner 's right to move this Court, but Mot this Court 's power under article 32" has been suspended during the operation of the Emergency, with the result that the petitioner has no locus standi to enforce his right, if any, during the Emergency". It is true that the Presidential order of 1975, like the residential order of 1962, does not suspend the general power of this Court under Article 32 or the general powers of High Courts under Article 226, but the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order. Courts, even in Habeas Corpus proceedings, do not grant relief independently if rights of the person deprived of liberty. If the locus standi of a deteneu is suspended no one can claim,, on his behalf, to get his right enforced. The result is to affect the powers of Courts, even if this be an indirect result confined to a class of cases, but, as the general power to issue writs of habeas Corpus is not suspended, this feature was, quite rightly, I respectfully think, pointed out by this Court in Mohan Chowdhury 's case (supra). It would not e correct to go further and read more into the passage cited above than seems intended to have been laid down there. The passage seems to me to indicate quite explicitly, as the language of article 359(1) itself; shows that the detenu 's right to move the Courts for the enforcement of his right to personal freedom, by proving an illegal deprivation of it by executive authorities of the State, is certainly not there for the duration of the Emergency. And, to the extent that Courts do not, and, indeed. cannot reasonably, act without giving the detenu some kind of a right or locus standi, their power to proceed with a Habeas petition against executive authorities of the State is itself impaired. It may be that in form and even in subs (1) ; @ 450. 339 tance, a general power to issue writs of Habeas Corpus remains with Courts. But, that court only be invoked in cases falling entirely outside the purview of the Presidential order and Article 359(1). That is how I, with great respect, understand the effect of Sree Mohan Chowdhury 's case (supra). It is possible that, if a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice from the Court outside the provisions of the Act on the ground of personal malice of the detailing authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for. , it may be possible to contend that it is not protected by the Presidential order of 27th June, 1975, and by the provisions of Article 359(1) of the Constitution at all. If that, could be patent, without any real investigation or inquiry at all, it may stand on the same footing as an illegal detention by a private individual. The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers. That is the almost utterly inconceivable situation or type of case which could still be covered by the general power to issue writs of Habeas Corpus. There may, for example, be a case of a fabricated order of detention which, the alleged detaining officer, on receipt of notice, disclaims. It is admitted that Part Ill of the Constitution is only meant to protect citizens against illegal actions of organs of the State and not against wrongs done by individuals. The remedy by way of a writ of Habeas Corpus is more general. It lies even against illegal detentions by private persons although not under Article 32 which is confined to enforcement of fundamental rights (Vide: Shrimati Vidya Verma through next friend R. V. section Mani, vs Dr. Shiv Narain (1). The Attorney General also concedes that judicial proceedings for trial of accused persons would fall outside the interdict of the Presidential order under Article 359 ( 1 ) . 'therefore it is unnecessary to consider hypothetical cases of illegal convictions where remedies under the ordinary law are not suspended. Now, is it at all reasonably conceivable that a detention order would, on the face of it, state that it is not for one of the purposes for which it can be made under the Act or that it is made due to personal malice or animus of the officer making it ? Can we, for a moment, believe that a return made on behalf of the State, instead of adopting a detention order, made by an officer duly authorised to act, even if there be a technical flaw in it, admit that it falls outside the Act or was made mala fide and yet the State is keeping the petitioner in detention ? Can one reasonably conceive of a case in which, on a Habeas Corpus petition, a bare look at the detention order or on the return made, the Court could hold that the detention by a duly authorised officer under a duly authenticated order, stands on the same footing as a detention by a private person? I would not like to consider purely hypothetical, possibly even fantastically imaginary, cases lest we are asked to act, as we have practically been asked to, on the assumption that reality is stranger than fiction. , and that be (1) 119551 2 section C. R. p. 983. 340 cause, according to the practice of determining validity of detention orders by the contents of grounds served, a number of detentions were found, in the past, to be vitiated, we should not present that executive officers will act according to law. Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: "omina praesumutur rite esse acts", which means that all official acts are presumed to have been rightly and regularly done. If the burden to displace that presumption is upon the detenu, he cannot, on a Habeas Corpus petition under Article 226 of the Constitution., ask the Court to embark upon an inquiry, during the Emergency, to allow him to rebut this presumption. To do so would, in my opinion, be plainly to countenance a violation of the Constitution. A great deal of reliance was placed on, behalf of the detenus, on the principle stated by the Privy Council in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria & Anr. (1) where Lord Aktin said (at p. 670): "Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under the ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding, such issues in the face of the executive. The analogy of the powers of the English Home Secretary to deport alience was invoked in this case. The analogy seems very close. Their Lordships entertain no doubt that under the legislation in question, in the Home Secretary deported a British subject in the belief that he was an alien,, the subject would have the right to question the validity of any detention under such order by proceedings in habeas corpus, and that it would be the duty of the Courts to investigate the issue of alien or not". " The salutary general principle, enunciated above, is available, no doubt, to citizens of this country as well in normal times. But it was certainly not meant to so operate as to make the executive answerable for all its actions to the Judicature despite the special provisions for preventive detention in an Act intended to safeguard the security of the nation, and, muchless, during an Emergency" when the right to move Courts for enforcing fundamental rights is itself suspended. Principles applicable when provisions, such as those which the Act contains, and a suspension of the right to move Courts for fundamental rights, during an Emergency, are operative, were thus (1) ; @ 670. 341 indicated, in Liversidge vs Sir John Anderson & Anr.,(1) by Viscount Maughan (at p. 219): "There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary Of State". Following the ratio decidendi of Rex vs Secretary of State for Home Affairs, Ex party Lees,(2) the learned Law Lord said (at p. 217). "As I understand the judgment in the Lees case it negatived the idea that the court had any power to inquire into the grounds for the belief of the Secretary of State His good faith not being impugned) or to consider whether there were grounds on which he could reasonably arrive at his belief". In Liversidge 's case (supra), the Court 's power to inquire into the correctness of the belief of the Secretary of State was itself held to be barred merely by the terms of a Regulation made under a statute without even a constitutional suspension of the right to move Courts such as the one we have before us. In Liversidge 's case (supra), Lord Wright explained Eshuqbayi Elekos ' case (supra) , cited before their Lordships as follows: (at p. 273): "The other matter for comment is the decision in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria (1931) (A.C. 662), where the government claimed to exercise certain powers, including deportation, against the appellant. The appellant applied for a writ of habeas corpus, on the ground that the ordinance relied on gave by express terms the powers contained only against one who was a native chief, and who had been deposed, and where there was a native custom requiring him to leave the area, whereas actually not one of these facts was present in the case. It was held in effect that me powers given by the ordinance were limited to a case in which these facts existed. It was a question of the extent of the authority given by the ordinance. That depended on specific facts capable of proof or disproof in a court of law, and unless these facts existed, there was no room for executive discretion. This authority has, in my opinion, no bearing in the present case, as I construe the powers and duties given by the regulation. There are also obvious differences between the ordinary administrative ordinance there in question and an emergency power created to meet the necessities of the war and limited in its operation to the period of the war. The powers cease with the emergency. But that period still continues and, it being assumed that the onus is on the respondents in this action of unlawful imprisonment, the onus (1) [1942] A. C. p. 206 & 217 & 219 & 273. (2) 342 is sufficiently discharged, in my opinion, by the fact of the order having been made by a competent authority within the ambit of the powers entrusted to him and being regular on its face". Viscount Maugham, in Greene vs Secretary of State for Home Affairs,(1) after referring to a very comprehensive opinion of Wilmot C. J. On the nature of Habeas Corpus proceedings in Common Law, pointed out that a return, good on its face and with no affidavit in support of it, could not be disputed on the application for a writ. At Common Law, the "sacred" character of the return, as Wilmot C. J. called it, even without a supporting affidavit, could not be touched except by the consent of the parties", because the whole object of the writ was to enquire into the existence of a legally recognised cause of detention, in a summary fashion, and not into the truth of facts constituting the cause. By the Habeas Corpus Act of 1816, the powers of Courts were extended so that it became possible to go behind the return in suitable cases other than those where a person was confined for certain excepted matters including criminal charges. In these excepted matters the return was and is still collective that English Courts do not go behind them. In Greene 's case, (supra), the rule of presumptive correctness of the return was applied to the return made on behalf of the Secretary of State to the extent of treating it as practically conclusive. It was held that the mere production of the Home Secretaries order, the authenticity and good faith of which were not impugned, constituted a complete answer to an application for a writ of Habeas Corpus and that it was not necessary for the Home Secretary to file an affidavit. It is interesting to note that, in that case, which arose during the Emergency following the war of 1939, the failure of the Advisory Committee to supply the correct reasons for his detention to the petitioner were not held to be sufficient to invalidate his incarceration. On the other hand, in these country" a violation of the obligation to supply grounds of detention has been consistently held to be sufficient to invalidate a detention before the changes in the Act and the Presidential order of 1975. By Section 7 of the Act 39 of 1975 Section 18 was added to the Act with effect from 25th June 1975. This provision reads: "18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any". In view of what I have pointed out earlier, this provision was not necessary. It appears to have been added by way of abundant caution. By Section 5 of the amendment Act 14 of 1976 another amendment was made in Section 18, substituting , for the words "under this Act" used in Section 18, the words "in respect of whom an order is made or purported to have been made under Section 3", respectively from 25th day of June, 1975. These amendments are covered by Article 359 (1A) of the Constitution., so that their validity is unassailable during the Emer (1) [1942] A. & . 284 @ 293. 343 gency on the ground of violation of any right conferred by Part III Of the Constitution. Nevertheless, the validity of Section 18 of the Act, as it stands, was challenged on the ground, as I understand it that is described as "the basic structure. ' of the Constitution was violated because, it was submitted, the Rule of Law, which is a part of the "basic structure" was infringed by the amended provisions. As` I have indicated below. , I am unable to subscribe to the view that the theory of basic structure amounts to anything more than a mode of interpreting the Constitution. It cannot imply new tests outside the constitution or be used to defeat Constitutional provisions. I am unable to see any force in the attack on the validity of Section 18 of the Act on this ground. The result of the amendments of the Act, together with the emergency provisions and the Presidential order of 27th June, 1975, in my opinion, is clearly that the jurisdiction of High Courts is itself affected and they cannot go beyond looking at the prima facie validity of the return made. The production of a duly authenticated order, purporting to have been made by an officer competent to make it under Section 3 of the Act, is an absolute bar to proceeding further with the hearing of a Habes Corpus petition. (D) The purpose and meaning g of Emergency y provisions , particularly Article 359 of our Constitution. From the inception of our Constitution, it was evident that the framers of it meant to establish a secular democratic system of Government with certain objectives before it without which real democracy is a mirage. Hence, they provided us not only with an inspiring Preamble to the Constitution and basic Fundamental Rights to citizens, but also with Directive Principles of State Policy so as to indicate how not only a political, but, what is more important, social and economic democracy, with maximum practicable equality of status and opportunity, could be attained. They foresaw that it may be necessary, for preserving the system thus set up and for ensuring a rapid enough march towards the objectives placed before the people of India, to give the executive branch of Government wide powers, in exceptional situations, so that it may deal with all kinds of emergencies effectively, and., thereby, safeguard the foundations of good Government which lie in discipline and orderliness combined with speedy and substantial justice. The late Prime Minister Jawaharlal Nehru once said: "You may define democracy in a hundred ways, but surely one of its definitions is self discipline of the community. The more the self discipline, the less the imposed discipline". Laws and law Courts are only part of a system of that imposed discipline which has to take its course when self discipline fails. Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of law and order and of law courts depend, may be imperilled By forces operating from within or from outside the country. What these forces are how they are operating, what information exists for the involvement of various individuals, wherever placed, could not 344 possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law. In Liversidge vs Sir John Anderson (supra) the following passages from Rex vs Halliday,(2) were cited by Lord Romer to justify principles adopted by four out five of their Lordships in Liversidges case in their judgments: (1) Per Lord Atkins (at p. 271): "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent sacrificed by legal enactment, namely, national success in the war, of escape from national plunder or enslavement . (2) Per Lord Finlay, L.C. (at p. 269). "It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate then a Court of law" After citing the two passages quoted above, Lord Romer observed in Liversidge 's case (supra) (at p. 281): "I respectfully agree. I cannot believe that the legis legislature or the framers of the regulation ever intended to constitute the courts of this country the ultimate judges of the matters in question". If, as indicated above, the opinion of the overwhelming majority of the Law Lords of England" in Liversidge 's cause (supra), following the principles laid down earlier also in Rex. vs Halide Ex Parte Zadig 's (supra) was that the jurisdiction of Courts is itself ousted by a statutory rule vesting the power of detention on a subjective satisfaction, based possibly on nothing more than a detenu 's descent from or relationship or friendship with nationals of a country with which England may be at war, and that the Secretary of State 's order indicating that he was satisfied about one of these matters, on hearsay information which could not be divulged in courts, in the interests of national safety and security, was enough, I do not think that either our Constitution contemplating an ouster of jurisdiction of Courts in such cases, or our Parliament, in enacting provisions which have that effect, was going beyond the limits of recognised democratic principles as they operate during emergencies. In fact. decisions on what restraints should be put and on which persons" during a national emergency, in the interests of national security, are matters of policy as explained below, which are outside the sphere of judicial determination. Situations of a kind which could not even be thought of in Eng land are not beyond the range of possibility in Asian and African countries or even in Continental Europe or in America judging from events of our own times. Indeed, we too have had our fill of grim tragedies, including the assassination of the father of the nation, which (1) ; (a) n. 271. 269. 345 could rock the whole nation and propel it towards the brink of an unfathomable abyss and the irreparable disaster which anarchy involves. Let me glance at the Constitutional History of England from where we took the writ of Habeas Corpus. Sir Erskine May wrote (See: Constitutional History of England, B Chapter XI): "The writ of habeas corpus is unquestionably the first security of civil liberty. It brings to light the cause of every imprisonment, approves its lawfulness" or liberates the prisoner. It exacts obedience from the highest courts: Parliament itself submits to its authority. No right is more justly valued. It protects the subject from unfounded suspicions, from the aggressions of power, and from abuses in the administration of justice. Yet, this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension. Rarely. , however, has this been suffered without jealousy, hesitation, and re monstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion. Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the right of individuals, in the interests of the State. The first years after the Revolution were full of danger. A dethroned king, aided by foreign enemies, and a powerful body of English adherents, was threatening the new settlement of the Crown with war and treason. Hence, the liberties of Englishmen, so recently assured, were several times made to yield to the exigencies of the State. Again, on occasions of no less peril the rebellion of 1755 the Jacobite conspiracy of 1722, and the invasion of the realm li by the Pretender in 1745 the Habeas Corpus Act was suspended. Henceforth, for nearly half a century, the law remained inviolate. During the American War, indeed, it had been necessary to empower the king to secure persons suspected of high treason, committed in North America, or on the high seas, or of the crime of piracy: but it was not until 1794 that the civil liberties of Englishmen at home were again to be suspended. The dangers and alarms of that dark period have already been recounted. Ministers, believing the State to be threatened by traitorous conspiracies once more sought power to countermine treason by powers beyond the law. Relying upon the report of a secret committee, Mr. Pitt moved for a bill to empower his Majesty to secure and detain persons suspected of conspiring against his person and Government. He justified this measure on the ground that 346 Whatever the temporary danger of placing such power in the hands of the Government" it was far less than the danger with which the Constitution and society were threatened. If Ministers abused the power entrusted to them, they would be responsible for its abuse. It was vigorously op posed by Mr. Fox, Mr. Grey, Mr. Sheridan, and a small body of adherents. They denied the disaffection imputed to the people ridiculed the revelations of the committee and declared that no such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom. This measure would give Ministers absolute power over every individual in the kingdom. It would empower them to arrest, on suspicion, any man whose opinions were abnoxious to then the advocates of reform. , even the members of the Parliamentary opposition. Who would be safe, when conspiracies were everywhere suspected, and constitutional objects and language believed to be the mere cloak of sedition '? Let every man charged with treason be brought to justice; in the words of Sheridan, 'where there was guilt, let the broad axe fall, but why surrender the liberties of the innocent ?" "The strongest opponents of the measure, while denying its present necessity, admitted that when danger is imminent, the liberty of the subject must be sacrificed to the paramount interests of the State. Ring leaders must be seized, outrages anticipated, plots disconcerted, and the dark haunts of conspiracy filled with distrust and terror. And terrible indeed was the power now entrusted to the executive . Though termed a suspension of the Habeas groups Act, it was. in truth, a suspension of Magna Charta, and of the cardinal principles of the common law. Every man had hitherto been free from imprisonment until charged with crime, by information upon oath, and entitled to a speedy trial, and the judgment of his peers. But any subject could now he arrested on suspicion of treasonable practices, with out specific charge or proof of guilt, his accusers were unknown ; and in vain might he demand public accusation and trial. Spies and treacherous accomplices" however circumstantial in their narratives to Secretaries of State and law officers, shrank from the witness box; and their victims rotted in gaol. Whatever the judgment, temper, and good faith of the executive, such a power was arbitrary, and could scarcely fail to be abused. Whatever the danger by which it was justified, never did the subject; so much need the protection of the laws, as when Government and society were filled with suspicions and alarm". It was not until 1801 that the Act was considered "no longer defensible on grounds of public danger and Lord Thurlow announced that he could "not resist the impulse to deem men innocent until tried and convicted". It was urged in defence of a Bill indemnifying an those who may have misused or exceeded their powers during the 347 period of suspension of the Habeas Corpus in England that, unless it was passed, "those channels of Information would be stopped on which Government relied for guarding the public peace". Hence a curtain was drawn to shield all whose acts could have been characterized as abuse or excess of power. It is unnecessary to cite from dicey or modern writers of British Constitutional Law, such as M/s Wade and Phillips, to show how, in times of emergency, the ordinary functions of Courts, and, in particular, powers of issuing writs of Habeas Corpus, have been curtailed. In such periods, legislative measures known as "suspension of the Habeas Corpus Act". Followed by Acts of Indemnity, after periods of emergency are over, have been restored to England. But, during the first world war of 1914 and the last world war of 1939, it was not even necessary to suspend the Habeas Corpus Act in England . The Courts themselves, on an interpretation of the relevant regulations under the Defence of Realm Act, abstained from judicial interference by denying, themselves power to interfere . In Halsbury`s Laws of England (4th Edn. Vol. 8, para 871, page 624), we find the following statement about the Crown 's Common Law prerogative power in an Emergency: "The Crown has the same power as a private individual of taking all measures which are absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency". And, as regards statutory powers of the Crown (See: Emergency Powers Act. , 1920, Sec. l; Emergency Powers Act, , we find (see para 983, page 627): "If it appears to Her Majesty that events of a specified nature have occurred or are about to occur, Her Majesty may by proclamation declare that a state or emergency exists. These events are those of such a nature as to be calculated, by interfering with the supply and distribution of food, water fuel or light , or with the means of locomotion, to deprive the community or any substantial portion of the community, or the essentials of life. No proclamation is to be in force for more than one month. , without prejudice to the issue of another proclamation at or before the end of that period. xxx xxx xxx xxx Where a proclamation of emergency has been made, and, so long as it remains in force, the Crown has power by order in Council to make regulations for securing the essentials of life to the Community." In America also, the suspension of the right to writes of Habeas Corpus, during emergencies, so as to temporarily remove the regular processes of law, is permissible by legislation (See: Cooley`s Constitutional Law ' 4th Edn. Chapter 34. p. 360), but it is limited by (Article 1. Sec. 9, clause 2) the American Constitution to situations in which there may be a rebellion or an invasion (See: Willis on 348 "Constitutional Law of United States", 1936 edn. p. 441 and p. 570. Even more drastic consequences flow from what is known in France as declaration of a "State of Seige", and, in other countries, as a "Suspension of Constitutional Guarantees". Under our Constitution, it will be seen, from an analysis of emergency provisions, that there is no distinction between the effects of a declaration of Emergency, under Article 352(1), whether the threat to the security of the State is from internal or external sources. Unlike some other countries" powers of Presidential declarations under Article 352(1) and 359(1) of our Constitution are immune from challenge in Courts even when the Emergency is over. Another noticeable feature of our Constitution is that, whereas the consequences given in Article 358, as a result of a Proclamation under Article 352 (1), are automatic, Presidential orders under Article 359(1) may have differing consequences, from emergency to emergency, depending upon the terms of the Presidential orders involved. And then, Article 359 (1A), made operative retrospectively by the 38th Constitutional amendment, of 1st August, 1975, makes it clear that both the Legislative and Executive organs of the State, are freed, for the duration of the Emergency, from the limits imposed by Part III of the Constitution. It is unnecessary to refer to the provisions of Articles 356 and 357 except to illustrate the extremely wide character of Emergency powers of the Union Govt. which can, by recourse to these powers, make immune from judicial review, suspend the federal features of our Constitution which have, sometimes, been elevated to the basic level. These provisions enable the Union Govt. to supersede both the legislative and executive wings of Government in a State in the event of a failure of Constitutional machinery in that State, and to administer it through any person or body of persons under Presidential directions with powers of the State Legislature "exercisable by or under the authority of Parliament". Article 360, applicable only to Proclamations of financial emergencies, with their special consequences, indicates the very comprehensive character of the Emergency provisions contained in part XVIII of our Constitution. We are really directly concerned only with Articles 352 and 353 and 358 and 359 as they now stand. They are reproduced below: "352. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. (2) A Proclamation issued under clause (1) (a) may be revoked by a subsequent Proclamation; (b) shall be laid before each House of Parliament; (c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both Houses of Parliament. 349 Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. (4) The power conferred on the President by this Article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation. (5)Notwithstanding anything in this Constitution, (a) the satisfaction of the President mentioned in clause (1) and clause 3) shall be final and conclusive and shall not be questioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of (i) a declaration made by Proclamation by the President dent to the effect stated in clause (1); or (ii) the continued operation of such Proclamation". While a Proclamation of Emergency is in operation, then (a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised; (b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring 350 powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List." "358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect". "359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is ill force or for such shorter period as may be specified in the order. (1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. (2) An order made as aforesaid may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament". Before dealing with relevant authorities on the meaning and effects of Article 358 and 359 of the Constitution, I will indicate the special features and context of the Presidential order of 27th June, 1975, as compared with the Presidential order of 3rd November, 1962, which was the subject matter of earlier pronouncement of this Court on which considerable reliance has been placed on behalf of the detenus. In fact, the next two topics are so connected with the Emergency provisions that there is bound to be a good deal of overlapping between what I have, for the sake of convenience only, tried to discuss under three heads. Different heads or names are not infrequently used only to indicate different aspects of what is really one connected subject 351 matter. Perhaps the last and concluding topic is wide enough to cover the scope of the whole discussion. The effect of the Presidential orders and particularly the order of 27th June, 1975, on the rights of detenus. The Presidential order of 3rd November 1962 was issued after the proclamation of Emergency under Article 352(1) on 26th October, 1962. That proclamation said: ". a grave emergency exists whereby the security of India is threatened by external aggression". On the other hand, the Presidential order of 27th June, 1975, with which we are concerned here was issued under a proclamation which declares "that a grave emergency exists whereby the security. Of India is threatened by internal disturbances". There was also a Presidential proclamation of 3rd December, 1971, repeating the terms of the proclamation of 26th October, 1962, as under: "In exercise of the powers conferred by clause (1) of article 352 of the Constitution, I, V. V. Giri, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression . The Presidential order of 3rd November, 1962, reads as follows: "In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder". The Presidential order of 27th June, 1975, runs as follows: "In exercise of the powers conferred by clause (1) of article 359 of the Constitution the President hereby declares that the right of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution and ail proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force 352 (2) This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir. (3) This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) of article 359 of the Constitution". The striking differences in the terms of the two Presidential orders set out above are: (1) The Presidential order of 1962 did not specify Article 14 of the Constitution, but Article 14, guaranteeing equality before the law and equal protection of laws to all persons in India, is mentioned in the 1975 order. To my mind, this does make some difference between the intentions behind and effects of the two Presidential orders. (2) The Presidential order of 1962 expressly hedges the suspension of the specified fundamental rights with the condition, with regard to deprivations covered by articles 21 and 22 of the Constitution that, "if such person is deprived of such right under the Defence of India, Act, 1962, or any rules or order made thereunder". In other words on the terms of the 1962 Presidential order, the Courts were under a duty to see whether a deprivation satisfies these conditions or not. They could adjudicate upon the question whether a detention was under the Act or a rule made thereunder. On the other hand, the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon "any person including a foreigner" to move any Court for the enforcement of the rights conferred by Articles 14, 21, and 22 of the Constitution. The Courts are, therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory requirements. They will have to be content with compliance shown with forms of the law. (3) Presidential order of 1962 makes no mention of pending proceedings, but the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein. This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of Courts in which proceedings were actually pending. The inference from this feature also is that all similar proceedings in future will, similarly, be affected. The result is that I think that there can be no doubt whatsoever that the Presidential order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary processes. Of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result, so that the jurisdiction of Courts under Article 226, in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of Section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on 25th January 1976, making Section 16A(9) operative retrospectively from 25th June, 1975. 353 The question before us is: What is the intention behind the Presidential order of 27th June, 1975. After assigning a correct meaning to it, we have to determine whether what was meant to be done lay within the scope of powers vested by Article 359 of the Constitution in the President. There is no doubt in my mind that the object of the Presidential order of 27th June, 1975, by suspending the enforcement of the specified rights, was to affect the powers of Courts to afford relief to those the enforcement of whose rights was suspended. I have already indicated, this was within the purview of Article 359(1) is the Constitution. Hence, the objection that the powers of the Court under Article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases. It is enough if the ambit of the power to suspend under Article 359(1) is such as to make exercise of the jurisdiction to protect guaranteed fundamental rights not reasonably possible. Section 16A(9) also appears to me, as held by My lord the Chief Justice, to make it impossible for Courts to investigate questions relating to the existence or absence of bona fides at least in proceedings under Article 226 of the Constitution. It is clear that the validity of Section 16A(9) cannot be challenged on the ground of any violation of Part III of the Constitution in view of the provisions of Article 359 (1A) . No previous decision of this Court deals with a situation which results from the combined effect of a Presidential order couched in the language of the order of 27th June 1975, and a statutory provision, such as Section 16A(9) of the Act, the validity of which cannot be challenged. Hence, strictly speaking, earlier decisions are not applicable. I will, however, consider them under the next heading as considerable argument has taken place before us on the assumption that these cases do apply to such a situation. (F)The Rule of Law as found in our Constitution, and how it operates during the Emergency. As I have indicated earlier in this judgment, the term Rule of Law is not a magic wand which can be waved to dispel every difficultly. It is not an Aladin 's Lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have. It can only mean, for lawyers with their feet firmly planted in the realm of reality, what the law in a particular State or country is and what it enjoins. That law in England is the law made by Parliament. That is why Sir Ivor Jennings said (See: Law and the Constitution III Edn.) that "in England supremacy of Parliament is the Constitution". And naturally, the Constitution of a country and not something outside it contains the Rule of Law of that country. This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country. It could not be rigid unchanging, and immutable like the ' proverbial laws of the Medes and Persians. Nevertheless, one has to understand clearly what it means 25 833 Sup C I/76 354 in a particular context. It cannot be like some brooding omnipotence in the skies. Its meaning cannot be what anyone wants to make it. It has to be, for each particular situation, indicated by the Courts which are there to tell the people what it means. This Court has, in no unmistakable terms, indicated what the Constitution means and how the Rule of Law embedded in it works even during Emergencies. A statement of the Rule of Law by Jackson, J., in Youngstown Sheet & Tube Co. vs Sawyer(1), quoted with approval by this Court, in Chief Settlement Commissioner, Rehabilitation Department Punjab & ors. vs Om Prakash & ors.(2) etc. (at page 661): "With all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by Parliamentary deliberations". It was explained there: In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court. The rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control of law. Such a notion is foreign to our basic constitutional concept". This statement, no doubt, includes the concept of determination by Courts of the question whether an impugned executive action is within the bounds of law. However, it presupposes: firstly, the existence of a fixed or identificable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act. and, secondly, the power of the Courts to test that action by reference to the Rule. Even, in Emergencies, provided the power of the Court to so test the legality of some executive act is not curtailed, Courts will apply the test of legality "if the person aggrieved brines the action in the competent Court". But, if the locus standi of the person to move the Court is gone and the competence of the Court to enquire into the grievance is also impaired by inability to peruse the grounds of executive action or their relationship with the power to act, it is no use appealing to this particular concept of the Rule of law set out above. It is just inapplicable to the situation which arises here. Such a situation is governed by the Emergency provisions of the Constitution These provisions contain the Rule of Law for such situations in our country. (1) ; , 655. (2) ; @ 661. 355 In Mohd. Yaqub etc. vs the State of Jammu & Kashmir(1), a seven Judge bench of this Court pointed out that, whereas Article 358, by its own force, suspends the guarantees of Article 19, Article 359(1) has the effect of suspending the operation of specified fundamental rights (strictly speaking it is enforcement only which is suspended) so that these concepts cannot be used to test the legality of executive action. Now, much of what Dicey meant by the Rule of Law was certainly sought to be embodied in Part III of our Constitution. If, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended, it is impossible to say that there is a Rule of Law found there which is available for the Courts to apply during the emergency to test the legality of executive action. Makhan Singh vs State of Punjab(2), a seven Judge decision of this Court was sought to be made a foothold for several arguments on behalf of the detenus. It, however, seems to me to have laid down more propositions which demolish various contentions advanced on behalf of the detenus than those which could assist them. One main question considered in that case was whether Section 491(1)(b) of the Code of Criminal Procedure could afford a statutory remedy, by an order or direction in the nature of a writ of Habeas Corpus, at a time when enforcement of the fundamental right to personal liberty was suspended by the Presidential order of 1962 already set out above. The suggestion that a Common Law remedy by way of writ of Habeas Corpus exists, even after Section 491 was introduced in the Criminal Procedure Code in 1923, was negatived. The sweep of Article 359(1) of the Constitution, taking in the jurisdiction of "any Court", was held wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified fundamental right. Inter alia, it was held (at p. 821 822): "If article 359(1) and the Presidential order issued under it govern the proceedings taken under section 491(1)(b) the fact that the court can act suo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him in his petition, the Court cannot, purporting to act suo motu, pass any order inconsistent with the provisions of article 359(1) and the Presidential order issued under it. Similarly, if the proceedings under section 491(1)(b) are hit by article 359(1) and the Presidential order, the arguments based on the provisions of article 372 as well as articles 225 and 375 have no validity. The obvious and the necessary implication of the suspension of the right of the citizen to move any court for enforcing his specified fundamental rights is to suspend the jurisdiction of the Court pro tanto in that behalf" This is exactly the interpretation which I have adopted above of Sree Mohan Chowdhury 's case (supra). (1) [1968] 2 section C. R. p. 227 @ 234. (2) [1964] 4 section C. R. 797 @ 821 822 356 It was also held in Makhan Singh`s case (supra) that, as no attack on the validity of the Defence of India Act of 1962 and the Rules framed thereunder, on the ground of violation of fundamental rights, was open during the emergency, no petition was maintainable on the ground of such alleged invalidity. It was held (at p. 825 826) there: "Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene articles 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential order and all citizens are precluded from moving any Court for the enforcement of the said specified rights". After having decided the questions actually calling for determination in that case, Gajendragadkar, J., speaking for the majority, ex pressed some views on the possible pleas which may still be open to petitioners in hypothetical cases despite the Presidential order of 1962, set out above, passed under Article 359(1). He said (at page 828): "If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. " Again, it was observed (at page 828 829): "Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide. It is hardly necessary to emphasis that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention or malafide would not be enough, the detenu will have to prove the malafides. But in the mala fides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar cleated by article 359(1) and the Presidential order. That is another kind of plea which is outside the purview of article 359(1)" The two passages set out above, stating what may be the position in purely hypothetical cases, are the mainstrays of some of the argu 357 ments for the petitioners But, none of the Counsel for the petitioners has stated how these observations are applicable to facts of the case to the particular petitioner for whom he appears. Assuming, however, that the hypothetical cases indicate good grounds on which a Habeas Corpus petition could be allowed even in an Emergency, it was certainly not decided in Makhan Singh`s case (supra) what the process could be for ascertaining that one of these grounds exist. if that process involves a consideration of evidence in support of a plea, such as that of mala fides in proceedings under Article 226" the most important, evidence would be grounds of detention. These grounds constituted the lever which could have been and was used in the past by Courts to reach decisions on various pleas, such as the plea that the order was not passed after due application of mind to the facts of the detenu 's case or that the ' satisfaction reached was not with regard to legally relevant grounds at all. No such means are available now. This difficulty was certainly not in the way at the time of the decision in Makhan Singh`s case (supra). I am therefore, of the opinion that pleas which involve any adduction of ' evidence would, at any rate, be entirely excluded by the combined effect of the terms of the Presidential order of 27th June, 1975, read with the amended provisions of Section 16A(9) of the Act. A perusal of section Pratap Singh vs State of Punjab,(1) will show the kind of evidence which often becomes necessary to justify a plea of "malice in fact". Pleas about vires of the detention order itself e.g. whether it is based on, irrelevant grounds or was not passed after due application of mind) often require investigation or questions of fact involving scrutiny of actual grounds of detention which is hit by the embargo against an assertion of a right to move for enforcement of the right to personal`freedom and prohibition against disclosure of grounds. So long as the executive authorities of the State purport to act under the Act,, their preliminary objection against further hearing will prevail unless, of course, the officer purporting to detain had, in fact, not been invested at all with any authority to act in which case the detention would, in my opinion, be on the same footing as one by a private person who has no legal authority whatsoever to detain. But, such a defect has to be apparent either on the face of the order or admitted in the return. Moreover, it can be cured by an adoption of the order by the State. Detentions which not only do not but could not possibly have ally apparent, ostensible" or purported executive authority of the State whatsoever to back them, could be equated with those by private persons. The suspension of enforcement of specified fundamental rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act? in official capacities which they could and do hold. A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf. could be enforced even during the current Emergency. But there is no such case before us. All the cases before us are, as far as I know. OF detentions by duly empowered official under, prima facie, good orders. The possibility, however, of so unlikely a hypothetical case (1)[1964] 4 section C. R. 733. 358 where there is a lack of legal power to act, which could be easily removed by the executive authorities of the State concerned themselves, whenever they desire to do so, is only mentioned to illustrate my view that the test of legality, applied by Courts, is not entirely abrogated and abandoned in the current emergency. But, it can be only one. which should be applicable without going into facts lying behind the return. The presumption of validity of a duly authenticate order. of an officer authorized to pass it is conclusive in Habeas Corpus proceedings during the current emergency State of Madhya Pradesh & Anr. vs Thakur Bharat Singh,(1) was another decision of the Constitution Bench of this Court relied upon strongly on behalf of detenus. In that case, an order prohibiting petitioner from residing in a specified area under section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959, which was found to be void, because the provision infringed Article 19 of the Constitution, was held to be challengeable during an Emergency despite the provisions of article 358 of the Constitution. The ground of the decision was that, although, the empowering provision could not have been challenged if it was contained in an enactment made during the emergency, yet as the provision was made by an Act passed at a time when Article 19 was operative the invalidity of the provision could be demonstrated despite the existence of the emergency. I do not think that there is any such case before us. It seems to me to he possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality, which is not suspended, could be affirmed even apart from enforcement of a specified fundamental right. I think it was placed on such a footing by Shah J., speaking for this Court. State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ,(2) another decision of the Constitution Bench of this Court, was also cited. There, an illegal order prohibiting the sending out of jail by a detenu of a book on matters of scientific interest only, for publication, was quashed by a High Court, under Article 226 of the Constitution" despite the Presidential order under Article 359 of the Constitution, on the ground that there was no condition at all in the Bombay Conditions of Detention order, 1951, authorising the Government of Maharashtra to prohibit the publication of a book of purely scientific interest just because the petitioner happened to be detained under the Defence of India Rules, 1962. The High Court 's view was affirmed by this Court. This case has nothing to do with preventive detention. It is a case in which this Court held that an ultra vires order could be set aside. This could be done under the residuary jurisdiction of the High Court, which could operate for "any other purpose". The mere existence of the emergency could not, it was held, suspend this power. The test applied was of bare illegality outside Article 19 of the constitution . (1) 11967] 2 section C. R. 454. (2) [1966] Supp section section C. R 702. 359 In Dr. Ram Manohar Lohia vs State of Bihar & ors. ,(1) this Court did, in a petition under Article 32 of the Constitution apply the test of a satisfaction required on relevant grounds, by Rule 30, subrule 1, Defence of India Rules, 1962, as a condition precedent to detention, because the grounds of detention were mentioned in the detention order itself so that they could be used to determine whether the detention order fell within the purposes of the Act. The writ petition was allowed. The alleged satisfaction of the District Magistrate, who was the detaining authority, was found, on the ground given for detention, to fall outside Rule 30. It was held that the Presidential order under Article 359 was not intended to condone violations of the defence of India Act or the rules made thereunder and did not authorise ultra vires or mala fide detentions. It was pointed out here that satisfaction about the need to detain in the interests of "law and order ' was not the same thing as one in the interests of "public order". In this case, a well known distinction between ` 'public order" and "law and order", was drawn by Hidayatullah, J., in the following terns: "It will thus appear that just as "public order" in the rulings of the Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression 'maintenance of law and. Order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rulers. I take the decision of this Court in Dr. Lohia`s case to mean that if the order, on the face of it., is bad and does not satisfy the requirements of the law authorising detention, the detenu may be released. Sarkar, J., pointed out there: "The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction. A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If that is so and that indeed is what the respondent State contends it seems to me that when an order is on the face of it not in terms of the rule a court cannot equally enter into an investigation whether the order of detention was in fact, that is to say, irrespective of what is stated in it, in terms of the rule. In other words. in such a case the State cannot be heard to say or prove that the order was in fact made for example, to prevent acts prejudicial to public. Order which would (1) ; 360 bring it within the rule though the order does not say so. To allow that to be done would be to uphold a detention without a proper order". The case was also decided on a consideration of evidence on the ground that there was an area of enquiry opened up by the grounds given for entry by the Court. I do not know how any decision could have been given in Dr. Lohia 's case if grounds of detention were not found to be bad on the very face of the order stating those grounds, or, if there was no door left open for judicial scrutiny due to a provision such a Section 16A(9) of the Act before us. Thus, the law considered and applied in Dr. Lohia`s case was different from the law we have to apply under a different set of circumstances as explained above. In K. Anandan Nambiar & Anr. vs Chief Secretary, Government of Madras & ors.(1) a writ petition under Article 32 of the Constitution by a Member of Parliament during the currency of an emergence and a Presidential order, was dismissed although his locus standi to maintain the petition was affirmed on the following ground: "The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed is invalid on grounds other than those based on articles 14, 19, 21 and 22" and if that plea is well founded, the last clause of the Presidential order is not satisfied and the bar created by it suspending the citizens ' fundamental rights under Articles 14, 21 and 22 cannot be pressed into service". Apparently, the view adopted in Nambiar 's case (supra) was that to question the validity of the provision under which the detention order is made could not be equated with an allegation of infringement of procedure established by law. Moreover, this decision was also in a different context with a different set of applicable provisions. None of the cases before us involves the assertion that the power under which the detention order purports to be made itself did not exist in the eye of law. In Durga Dass Shirali vs Union of India & ors. a Habeas Corpus petition against a detention order under Rule 30 of the Defence of India Rules, 1962, was again dismissed. But, it was held that Article 358 and the Presidential order under Article 359(1) did not debar the petitioner from assailing his detention on the ground of mala fides or on the ground that any of the grounds mentioned in the order of detention is irrelevant. This case is also distinguishable on the ground that the context" from the point of view of the applicable law, was different. In Jai Lal vs State of West Bengal, (8) this Court, after taking evidence by affidavits into account and considering the pleas of mala fides, rejected the petitioner 's case although the petitioner was held on the strength of earlier decisions of this Court, entitled to raised the (1) [1966] 2 Sr C. R. 406. (2) ; (3) [1966] Supply. section C. R. p. 4, 64. 361 pleas of mala fides despite the Proclamation of emergency and the Presidential order. Again, the context and the applicable law there were different We, however, see that, despite the Proclamation of emergency and a Presidential order under Article 359(1), this Court has held that High Courts, in exercise of their supervisory jurisdiction, could entertain Habeas Corpus petitions and enforce the principle of legality against the detaining authorities. No doubt, the executive and the legislative organs of the State were fully aware of the nature and effect of the decisions of this Court. It is, therefore., not surprising that, by means of a differently phrased Presidential order of 17th Junc. 1975, and the amendment in the Act, introducing rather drastic provisions of Section 16A of the Act, the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State. It was contended by Mr. Tarkunde that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers. It is very difficult for me to see the bearing of any such doctrine on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few D ' doubts unresolved. However, as arguments based on this doctrine were advanced, I will deal with the manner in which, I think, laws relating to preventive detention fit in with the extent to which our constitution recognises the doctrine. In Rai Sahib) Ram Jawaya Kapur & ors. vs The Stale of Punjab,(1) Mukherjea, C.J., speaking for this Court, said: E "The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts of branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumptions, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature". He further added: "Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State". If an order of preventive detention is not quasi judicial, as it cannot be because of the impossibility or applying any objective (1) A. I. R 1955 section C. 549. 362 standards to the need for it in a particular case, there could be no question of violating any principle of separation of powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the Emergency. That seems lo me to the effect of the emer ency provisions of the Constitution and the amendments of the Act already dealt with by me. Commenting upon Liversidge 's case (supra) in "The Law Quarterly Review" (1942) (Vol. 58 p. 2). , the celebrated jurist and authority on English Constitutional history and law, Sir William Holdsworth, supporting majority decision there, opined: "The question turns not, as Lord Atkin says upon whether the common law or the statute law has postulated a 'reasonable ' cause for a decision or an action, but upon the question whether or not the decision or the action to be taken on a reasonable cause raises a justifiable issue. Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justifiable,, but a political or administrative issue". He added "On principle this distinction seems to me be he clearly right. If the issue is justifiable, if, that is, it raises an issue within the legal competence of the Court to try, the Court can decide on the facts proved before it whether a cause or a suspicion is reasonable, for it knows the law as to what amounts in the circumstances to a cause or a suspicion which is reasonable. If, on the other hand, the issue is not justifiable, if, that is, it turns, not on a knowledge of the law as to what amounts in the circumstances to a reasonable cause or suspicion, but on political or administrative considerations it can have no knowledge of the weight to be attached to facts adduced to prove the reasonableness or unreasonableness of the cause or suspicion. for it has neither the knowledge nor the means of acquiring the know ledge necessary to adjudicate upon the weight to be attach ed to any evidence which might be given as to the existence of circumstances of suspicion or as to the reasonableness of belief Since, therefore, it is impossible to apply an objective standard through the agency of the Courts? the only possible standard to be applied the subjective standard, so that the Secretary of State 's statement that he had a reason able cause for his belief must be conclusive". If the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that what lies in the executive field, as indicated above., should not be subjected to judicial scrutiny or judged by judicial standards of correctness, I am unable to see how the Courts can arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency , possess. 363 Dean Roscoe Pound, in the Green Foundation Lectures on "Justice h According to Law" (Yale University Press, 1951) begins his answer to the question as to what justice is by a reference to the jesting Pilate, who would not stay for the answer because he knew that philosophers disagreed so much, in their answers, that there could be no completely satisfactory answer. He divides justice itself into three heads according to the three types of bodies or authorities which could administer it, and discusses the advantages and disadvantages of each: Legislative, Executive, Judicial. He rejects "Legislative Justice", said to be most responsive to popular will, as too "uncertain, unequal, and capricious '. He said that its history, even in modern times, was filled with "legislative lynchings"" and that this kind of justice was ton susceptible to "the influence of personal solicitation, lobbying, and even corruption", and subject to guests of passion, prejudice, and partisanship. He thought that executive or administrative justice, which becomes inevitable in carrying out vast schemes of modern socialistic control and planning of economic, social, and cultural life of the people by the State was also, despite its own mechanisms of control against misuse of power" fraught with serious dangers indicated by him. Finally, Dean Pound finds judicial justice, though not entirely immune from error and, sometimes, grievous and costly error to be superior to the other two types of justice despite its own inherent shortcomings as compared with executive or administrative justice for special types of cases. Now , the question before us is not whether Courts should apply the high standards of "judicial justice" to the facts of each individual case which are not before us for consideration at all. The question before us is purely one of the interpretation of laws as we find them. on a correct interpretation of the legal provisions, we find that the jurisdiction of Courts was itself meant to be ousted, for the duration af the emergency, to scrutinise the facts or reasons behind detention orders purporting to have been made under the Act. because the judicial process suffers from inherent limitations in dealing with cases of this type, we are bound, by the canons of "judicial justice" itself to declare that this is what the laws mean. It appears to me that it does not follow from a removal of the normal judicial superintendence, even over questions of vires, of detention orders, which may require going into facts behind the returns, that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face af the return itself, it is demonstrate in a Court of Law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention. It seems to me that the intention behind emergency provisions and of the Act is that although such executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly supervised and controlled by the hierarchy of executive authorities themselves It enhances the powers and, therefore, the responsibilities of the Executive. A maxim of justice is sometimes said to be :"Let the heavens fall but justice must be done ". As applied to judicial justice, it means 364 that justice must accord with the highest standards of objective, impartial , unruffled dictates a clear judicial conscience working "without t fear or favour, affection or ill will". It does not mean that the object of "judicial justice" is either to make the heavens fall ' or that it should be oblivious to consequences of judicial verdicts on the fate of the nation. It fully recognises the legal validity of the principle adopted by the English House of Lords in both Sadiq`s case (supra and Liversidge 's case (supra): "Salus Populi Est Supreme Lex" (regard for the public welfare is the highest law). This is the very first maxim given Broom 's Legal Maxim under the first head "Rules founded on public policy" (See Broom 's 'legal Maxims" p. 1). It is not my object to animadvert here at length on any weakness in our legal or judicial system. I would however, like to point out that judicial justice can only be "justice according to law". It tends more often to accord with legal justice than moral justice. Not only are the fact finding powers of Courts limited by rules of evidence and procedure, but the process of fact finding and adjudication can miss their objects due to the buying power of money over venel witnesses and the capacity of the wealthy to secure the best forensic talents in the country even if we do not take into account the liability of judges. like the rest of human beings, to err. Ends of justice can be frustrated by all kinds of abuses of the processes of Courts The machinery of executive justice, though not hide bound by technical rules of evidence and procedure, can also be and often is inordinately dilatory. Its wheels can be clogged by red tape and by corrupt clerical underlings if their palms are not greased by honest citizens. Even those in the upper echelons of the bureaucracy can be sometimes hopelessly unable to see the true objects of an administrative scheme or of the policy embodied in a statute. They tend to be more anxious to please their superiors than to do justice so that matters in which executive heads may not get interested are liable to be neglected for years and even forgotten, whereas others, in which they are interested, received speedy attention. They are not even aided by lawyers who, whatever else may be said about them, have undoubtedly imagination, courage, independence, and devotion to their client 's interests. In any case, executive justice lacks the appearance of detachment. Justifiable disputes between the State and the citizen. On principles of natural justice? require independent authorities for their resolution. It is for this reason that Article 226 of the Constitution places administrative action and inaction, even at the highest levels, under judicial superintendence, when it impinges on rights of persons, although this may have given rise to problems of its own either due to misuse by litigants of the powers of High Courts under Article 226 of the Constitution or want of clarify in the drafting of our statutes or the difficulties experienced by the executive officers of Government in understanding the laws or the manner in which their own duties are to be carried out. Considerations, such as those mentioned above, arising out of alleged carelessness with which, according to the learned Counsel for the detentes, detentions are sometimes ordered, were placed before us so 365 that we may not deny powers of rectification of apparent errors of detaining officers to High Courts. It was stated by one learned Counsel that a detention order was once issued against a person who was dead. Obviously, no detention order could be executed against a dead person and no writ petition could be moved on behalf of such a person. I have, however. , no doubt, that the machinery of the preventive detention is not so defective as to prevent executive authorities at the highest levels from doing justice in appropriate cases where real injustice due to misrepresentations or mis apprehensions of fact is brought to their. notice. Not only are the highest executive authorities, under whose supervision the administration of preventive detention laws is expected to take place, better able than the High Courts, acting under Article 226 of the Constitution, to go into every question of fact and are in a much better position to know all relevant facts, but their knowledge f the meaning of laws to be administered and the policies underlying them could not be less, even if they are not better, known to them than to the High Courts on such a matter as preventive detention. As already indicated, it raises essentially matters of policy. Courts cannot decide what individuals with what kind of associations and antecedents should be detained. In some cases,, the associations and affiliations of individuals with groups or originations may certainly be matters of common public knowledge. But, it is only the membership and associations of persons which may be matters of public knowledge. The nature of information, and the manner in which individuals or organisations concerned may do something, which may constitute a danger to the security of the State, are matters of appraisement of situations and policies on which information could certainly not be broadcast. I, therefore, think that a challenge to the validity of Section 16A(9) based either on the submission that grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well founded. I will indicate below the safeguards which exist in the Act itself for obtaining redress on the executive side in cases` of preventive detention. As was held by this Court in Ram Jawaya Kapur 's case (supra), there is no such strict separation of powers under our Constitution as one finds in the American Constitution. No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers. Section 3. 3 of the Act shows that the detaining officer has to submit a report forthwith on a case of preventive detention, to ether with grounds of detention and particulars of the case, for the approval of the State Government. The detention order itself unless approved by the State Government, lapses automatically after 12 days. In special cases, covered by Section 8 of the Act, the proviso to Section 3, sub. 3, makes the initial order, subject to the approval of the State Government" operative for 22 days. In cases covered by Section 16A(2) and (3) of the Act, in which no grounds of detention are to be supplied to the detenu, the State Government has to review and confirm the order if the detention is to continue beyond 15 days. 366 Section 14 of the Act provides for revocation of detention orders without prejudice to the provisions of Section 21 of the . The power of revocation may be exercised not only by the detaining officer concerned, but by the State Government or the Central Government also Temporary release of persons detained is also provided for by Section 15 of the Act on the order of the appropriate Government as to prevent undue hardship and to Meet special con contingencies. The provisions of Article 353(a) of the Constitution also the Union Government to issue directions to a State Government relating to the manner in which a State 's executive power is to be exercised during the Emergency. Means of redress, in cases such as those of mistaken identity or misapprehension of facts or detentions due to false and malicious reports circulated by enemies, are thus still open to a detenu by approaching executive authorities. There is no bar against that. What is not possible is to secure a release by an order of a Court in Heabeas Corpus proceedings after taking the Court behind a duly authenticated prima facie good return. An argument before us, to which would like to advert here, was that, notwithstanding the emergency provisions. , some undefined or even defined principles of Rule of Law, outside the emergency provisions, can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution because the Rule of Law has been held by this Court to be a part of the inviolable 'basic structure" of the Constitution. It was submitted that, as this basic structure was outside even the powers of amendment of the Constitution under Article 368 of the Constitution, it could not be affected by emergency provisions or by provisions of the Act. We were asked to atleast interpret the emergency provisions and the Act in such a way as to preserve what was`represented to be the "Rule of Law" as a part of the basic structure of the Constitution. It seems to me that the theory of a "basic structure" of the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with Constitutional provisions. The Constitution cannot have a base cut away from the super structure. Indeed, as explained above, it seems to me that the emergency provisions could themselves be regarded as part of the basic structure of the Constitution. At any rate, they are meant to safeguard the basis of all orderly Government according to law. Speaking for myself, I do not look upon the theory of a basic structure of the constitution an anything more than a part of a well recognised mode of construing a document. The constitution, like any other document, has to be read and construed as a whole. This is the common principle which was applied, though in different ways and with differing results, both by Judges taking the majority as well as minority views in Kesavananda Bharti`s case (supra). Some of the learned Judges thought that, by an application of this rule, the scope of the power of amendment, contained in Article 368 of the Constitution , was limited by certain principles which, though not expressly laid down in Article 368, could be read into the word "amendment" as implied limitations upon powers under Article 368. On the other 367 hand other learned Judges (including myself) took the view that, considering the provisions of the Constitution as a whole, the powers of amendment of the Constitution in Article 368, which operated on all parts of the Constitution itself and embraced even the power of amending Article 368 of the Constitution, could not reasonably be so limited. The theory, therefore, was nothing more than a method of determining the intent behind the constitutional provisions. It could not and did not build and add a new part to the Constitution It was then urged that want of bona fides was expressly left open for determination by Courts even in an emergency in Liversidge`s s case. It must not, however, be forgotten that Liversidge`s case was not a decision upon a habeas corpus proceeding, but, it came to the House of Lords at an interlocutory stage of a suit for damages for false imprisonment when Liversidge was denied access to particulars of grounds of his detention. The question considered there was whether he could ask for them as a matter of right. The House of Lords denied him that right. In Greene 's case (supra)" which was heard with Liversidge 's case (supra) by the House of Lords, the decision was that the return made on behalf of the Secretary of State could not be questioned. It is true that even in Greene 's case (supra), a theoretical exception was made for a case of want of bona fides. I call it "theoretical" because such a case is perhaps not, easily conceivable in England. It also requires some explanation as to what could be meant by holding that a return is "conclusive", but the bona fides of the order can be challenged. The explanation seems to me to be that want of bona fides or "malice in fact" was placed on the same footing as fraud, which nullifies and invalidates the most solemn proceedings. It may, however, be pointed out that, in Greene`s case (supra), it was not held that mala fides or any other invalidating fact could be proved during the emergency in habeas corpus proceedings. An explanation of an almost formal exception for a case of want of bona fides could be that the reservation of such a plea was meant only for such proceedings in which "malice in fact" could reasonably be gone into and adjudicated upon. The position before us, however., is very clear. Section 16A(9) imposes a bar which cannot be overcome in Habeas Corpus proceedings. In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than a merely ordinary rebuttable presumption for purposes of proceedings under Article 226 of the Constitution. These are, as already indicated summary proceedings. I may point out here that the term "mala fide" is often very loosely used. Even in England, the scope of malice is wide enough to include both "malice in law" and "malice in fact". Lord Haldane in Shearer vs Shields,(1) said: "Between 'malice in fact ' and 'malice in law ' there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed (1) 368 to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of 'malice in law ', although. so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. 'Malice in fact ' is a different thing. It means an actual malicious intention on the part of the Person who has done the wrongful act". Now, applying the broad concepts of "malice in law` ', as stated t above, it has often been argued before us, in cases of preventive detention, that the burden is upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopt ed in a case of deprivation of personal liberty. To ask the executive authorities to satisfy such a requirements in accordance with what has been called the principle in Eshuqbayi Eleko 's case (supra)) would be in my opinion, to nullify the effect of the suspension of the enforceability of the procedural protection to the right of personal freedom. To do so is really to make the Presidential order under Article 359(1) of the Constitution ineffective. Therefore, no question of "malice in law ' can arise in Habeas Corpus proceedings when such a protection is suspended. As regards the issue of "malice in fact", as I have already pointed out, it cannot be tried at all in a Habeas Corpus proceeding although it may be possible to try it in a regular suit the object of which is not be enforce a right to personal freedom but only to obtain damages for a wrong done which is not protected by the terms of Section 16 of the Act. The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers. Mr. Mayakrishnan, learned Counsel for one of the detenus, con tended that state of emergency, resulting from the Presidential order of 27th June, 1975, cannot be equated with a situation in which Martial Law has been proclaimed. The argument seems to be that if the jurisdiction of Courts to enforce the right ht to personal freedom is affected, the resulting position would be no different from that which prevails when Martial Law is declared. There is no provision in our Constitution for a declaration of Martial Law. Nevertheless, Article 34 of the Constitution recognises the possibility of Martial Law in this country. It provided: "34 notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other t person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area? ' As there is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed", it could be urged that a Presidential order under Article 359(1) has a similar effect and 369 was intended to provide for situations in which Martial Law may have to be declared in any part of the country. But, a Presidential order under Article 339(1) of the Constitution would, ordinarily, have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country. The Presidential Proclamations are meant generally to cover the country as a whole. "Martial Law" is generalIy of a locally restricted application. Another difference is that conditions in which what is called "Martial Law" may prevail result in taking over by Military Courts of powers even to try offences; and, the ordinary or civil Courts will not interfere with this special jurisdiction under extraordinary conditions. Such a taking over by Military Courts is certainly outside the provisions of Article 359(1) of the Constitution taken by itself. lt could perhaps fall under Presidential powers under Articles 53 and 73 read with Article 355. Article 53(2) lays down: "53 (2) Without prejudice to the generality of the foregoing provision the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law". And, Article 355 provides: "355. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. " A similarity in results however between Martial Law and conditions, resulting from a Presidential order under Article 359(1) is that, if no provision is made by an Act of Indemnity the civil liabilities of military or civil officers, acting mala fide and outside the law, are not removed ipso facto by either Martial Law or the Proclamation of Emergency. In Halsbury 's Laws of England (4th Edn. vol. 8, para 982, page 625), an explanation of Martial Law, as it is known in British Constitutional Law, is given as follows: "The Crown may not issue commissions in time of peace to try civilians by martial law; but when a state of actual war, or of insurrection, riot or rebellion amounting to war exists, the Crown and its officers may use the amount of force necessary in the circumstances to restore order. This use or force is sometimes termed "martial law". When once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities, but it is for the civil courts to decide, if their jurisdiction is invoked, whether a state of war exists which justifies the application of martial law. The powers. such as they are, of the military authorities cease and those of the civil courts resumed ipso facto with the termination of the State of war. and in the absence of an act of Indemnity, the civil courts may inquire into the 24 833SCI 76 370 legality of anything done during the state of war. Even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected. Whether this power of using extraordinary measures is really a prerogative of the Crow, or whether it is merely an example of the common law right and duty of all, ruler and subject alike, to use the amount of force necessary to suppress disorder, is not quite free from doubt. it is, however, clear that so called military courts set up under martial law are not really courts at all, and So an order of prohibition will not issue to rest rain them. Probably the correct view to take of ' martial law itself is that it is no law at all. It is not at all necessary for the purposes of the decision of cases before us to determine how proclamations of emergency are related to the more drastic conditions in which "Martial Law" if it is "law" at all, may come into existence due to the very necessities of a situation. It is evident that the emergency provisions of our Constitution arc very comprehensive. They are intended not merely to deal with situations when actual out break of hostilities with another country try has taken place and a war is going on but also when the country 's peace, progress, security and independence are threatened by dangers either internal or external or both. Whether there is a "grave emergency", falling within Article 352(1), is a matter entirely for the President to determine. Attempts were made by some learned Counsel to paint very gloomy pictures of possible consequences if this Court held that no relief was open to petitioners against deprivation of their personal freedoms by executive officers in an emergency of indefinite duration, when a number of cases of serious misuse of their powers by the detaining officers were said to be in evidence. I do not think that it is either responsible advocacy or the performance of any patriotic or public duty to suggest that powers of preventive detention are being misused in the current emergency when our attention could not be drawn to the allegations in a single case even by way of illustration of the alleged misuse instead of drawing upon one s own imagination to conjure up phantoms. In fact, I asked some learned Counsel to indicate the alleged facts of any particular case before us to enable us to appreciate how the power of preventive detention had been misused. Mostly, the answers given were that the facts of the cases were not before us at this stage which is true. But, it is significant that no case of alleged "malice in fact" could be even brought to our notice. It seems to me that Courts can safely act on the presumption that powers of preventive detention are not being abused. The theory that preventive detention serves a psycho therapeutic purpose may not be correct. But, the Constitutional duty of every Govt. faced with threats of wide spread disorder and chaos to meet it with appropriate steps cannot be denied. And, if one can refer to a matter of common knowledge, appearing from newspaper reports, a number of detenus arrested last year have already been released. This shows that whole situation is periodically reviewed. Furthermore, we under 371 stand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated. is almost maternal. Even parents have to take appropriate preventive action against those children who May threaten to burn down the house they live in. If there are, under our Constitution, some supreme obligations or overriding powers or duties, vested in superior Court s, as learned Counsel for the detenus seemed to be contending for, to enforce the claims of constitutionality, quite apart from the suspended powers and duties of Courts to enforce fundamental rights, I am sure that the current emergency, justified not only by the rapid improvement. due to it in the seriously dislocated national economy and discipline but also by the rapid dangers of tomorrow, apparent to those who have the eyes to see them, averted by it, could not possibly provide the occasion for the discharge of such obligations towards the nation or the exercise of such powers, if any, in the Courts set up by the Constitution. Where there are such great obligations and powers they must always be guided by the principle already indicated: "Sauls Populi Est Suprema Lex". Indeed, as I understand even the majority view in Golaknath`s case (supra), it was that, despite the invalidity of constitutional amendments of provisions containing fundamental 1) rights, to give effect to the view would be contrary to this principle. The case for the detenus before us, however, fails on preliminary hurdles. Despite strenuous efforts, their learned Counsel were quite unable to show any constitutional invalidity, directly or indirectly, in any of the measures taken, whether legislative or executive, by or on behalf of the State. The real question for determination by us relates only to the meaning and effect of the Constitutional and statutory provisions indicated above which are applicable during the current Emergency. A large number of other questions including even some quite remotely connected with the real question involved, were permitted Court to be argued because of the great concern and anxiety of this Court when problems relating to personal liberty are raised. On the interpretation of the relevant provisions adopted by me, the validity of detention orders purporting to be passed under the Act cannot. be challenged in Habeas Corpus proceedings. Judicial proceedings in criminal Courts, not meant for the enforcement of fundamental rights, are not, either at the initial or appellate or revisional stages, covered by the Presidential order of 1975. Habeas Corpus petitions are not maintainable in such cases on another ground. It is that the prisoner is deemed to be in proper custody under orders of a Court. My answer to the two questions set out in the beginning of this judgment which I compressed into one, is as follows: A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it, recording purported satisfaction to detain the petitioner under the maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a writ of Habeas Corpus. Once such an order is shown 372 to exist in response to a notice for a writ of Habeas Corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in Habeas Corpus proceedings. The preliminary objection of the State must be accepted in such a case. The result is that the appeals before us are allowed and the judgment and order of the High Court in each case is set aside. The High Court concerned will itself now pass an order on each petition in accordance with law as laid down by this Court and the provisions of Article 359(1) of the Constitution. CHANDRACHUD, J. During, the last few years, many questions of far reaching constitutional importance have engaged the attention of this Court but these appeals, perhaps, present problems of the gravest magnitude. They involve an adjustment between two conflicting considerations, the liberty of the individual on one hand and exigencies of the State on the other. This balancing of the most precious of human freedoms the liberty of the subject as against the most imperative of the State 's obligations the security of the State gives rise to multi dimensional problems quite beyond the scope and compass of each right considered separately and in isolation. Can the freedom of the individual be subordinated to the exigencies of the State and if so, to what extent ? The Constitution concedes to the Executive the power of Preventive detention, but in the name of national security can that jurisdiction of suspicion be so exercised as to reduce the guarantee of personal liberty to a mere husk ? Detention without trial is a serious inroad on personal freedom but it bears the sanction of our Constitution. The Constituent Assembly composed of politicians. statesmen, lawyers and social workers who had attained a high status in their respective specialities and many of whom had experienced the travails of incarceration owing solely to their political beliefs resolved to put Article 22, clauses (3) to (7) into the Construction. may be as a necessary evil. But does that mean that, more as a rule than as an exception, any person can be detained without disclosing the grounds of detention to him or to the Court which may be called upon to try his Habeas Corpus petition ? And can such grounds and the information on which the grounds are based be deemed by a rule of evidence to relate to the affairs of the State, therefore, confidential , and therefore privileged ? Blind, unquestioning obedience does not flourish on English soil, said Lord Simonds in Christie vs Leachinsky(1). Will it flourish one Indian soil ? These broadly are the sensitive questions for decision and importantly, they arise in the wake of Proclamations of Emergency issued by the President. Part XVIII of the Constitution, called "Emergency provisions", consists of Articles 352 to 360. Article 352(1) provides that if the President is satisfied that a grave emergency exists whereby the secu (1) ; 591. 373 rity of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. A Proclamation issued under clause (1) is required by clause (2) (b) to be laid before each House of Parliament and by reason of clause (2) (c) it ceases to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. By clause (3) of Article 352, a Proclamation of Emergency may be made before the actual occurrence of war or of external aggression or internal disturbance, if the President is satisfied that there is imminent danger thereof. Clause (5) (a) makes the satisfaction of the President under clauses (1) and (3) final, conclusive and non justiciable. By clause (5) (b), neither the Supreme Court nor any other court has jurisdiction, subject to the provisions of clause (2), to entertain any question on any ground regarding the validity of a proclamation issued under clause (1) or the continued operation thereof. Article 358 provides that: "While a Proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. " Article 359(1) empowers the President, while a Proclamation of emergency is in operation to declare by order that: ". the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. " Clause (1A), which was inserted retrospectively in Article 359 by section 7 of the Thirty eighth Amendment Act, 1975, provides: "While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect." 374 Clause (3) of Article 359 requires that every order made under clause (1) shall, as soon as may be after it is made, be laid before each house of Parliament. Article 352 was resorted to for the first time when hostilities broke out with China. On October 26, 1962 the President issued a Proclamation declaring that a grave emergency existed whereby the security of India was threatened by external aggression. This proclamation was immediately followed by the defence of India ordinance, 4 of 1962, which was later replaced by the Defence of India Act, 1962. on November3, 1962 the President issued an order under Article 359(1) of the Constitution, which was later amended by an order dated November I 1, 1962 stating that: "the right of any person to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder(Emphasis supplied). Article 14 was added to the order of November 3, 1962 by the amendment dated November 11, 1962. The emergency declared on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352(2)(a) of the Constitution. The Defence of India Act, 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26, 1962 and for a period of six months thereafter . The Act of 1962 expired on July 10, 1968. The maintenance of Internal Security Act, 26 of 1971, (MISA) was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan. Section 3(1) of that Act provides as follows: "3.(1) The Central Government or the State Government may, (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential ll to the community, or (b) if satisfied with respect to any foreigner that with a view 2to regulating his continued presence in India or 375 With a view to making arrangements for his expulsion from India. It is necessary so to do make an order directing that such person be detained. " Section 8 of the Act requires that the grounds on which the order of detention is made shall be communicated to the detenu within a certain period but that the authority making the order may not disclose facts which it considers to be against the public interest to disclose Consequent on the Pakistani aggression, the President issued a Proclamation of Emergency on December 3, 1971 on the ground that the security of India was threatened by external aggression. By on. Order dated December S, 1971 issued under Article 359(1) of the Constitution, the right of 'foreigners ' to move any court for the enforcement of rights conferred by Articles 14, 21 and 22 was suspended. In September 1974 the MISA was amended by ordinance 11 of 1974 to include sub section (c) in section 3(1), by which the right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act, 1947. On November 16, 1974 the President issued a Declaration under Article 359(1) suspending the right of persons detained under section 3 (1) (c) of the MISA lo move for enforcement of tile rights conferred by Article 14, Article 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution On June 25, 1975 the President issued a Proclamation under Article 352(1) declaring that a grave emergency existed whereby the security of India was threatened by internal disturbance. On June 27, 1975 The President issued an order under Article 359(1) which reads as follows: "G.S.R. 361 (E) In exercise of powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th of June, 1975 are both in force. The order shall extend to the whole of the territory of India. This order shall be in addition to and not in derogation of any order made before the date cf this order under Clause (1) of Article 359 of the Constitution." Various persons detained under section 3(1) of the MISA filed petitions in different High Courts for the issue of the writ of Habeas Groups. When those petitions can. up for hearing, the Government 376 raised a preliminary objection to their maintainability on the ground that in asking for release by the issuance of a writ of habeas corpus, the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Article 21 f he Constitution only. The right to move for enforcement of the right conferred by that Article having been suspended by the Presidential order dated June 27, 1975 the petitions, according to the Government, were liable to be dismissed at the threshold. The preliminary objection has been rejected for one reason or another by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. Broadly, these High Courts have taken the view that despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as for example,. by showing that the order on the face of it is passed by an authority not empowered to pass it, or it is in excess of the power delegated to the authority, or that the power has been exercised in breach 0 the conditions prescribed in that behalf by the Act under which the order is passed, or that the order is not in strict conformity with the provision of the Act. Some of these High Courts have further held that the detenus can attack the order of detention on the grounded that it is malafide, as for example, by showing that the detaining authority did not apply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations, or that the authority was actuated by improper motives. Being aggrieved by the finding recorded by these High Courts on the preliminary point the State Governments and the Government of India have filed these appeals, some under certificates granted by the High Courts and some by special leave granted by this Court. The High Courts of Andhra Pradesh, Kerala and Madras have upheld the preliminary objection. During the pendency of these appeals and while the hearing was in Progress, the President issued an order dated January 8, 1976 under Article 359(1) declaring that the right to move any court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall suspended during the operation of the Proclamations of Emergency dated December 3, 1971 and June 25, 1975. On behalf of the appellants, the appeals were argued by the learned Attorney General and the learned Additional Solicitor General. The learned Advocates General of various States argued in support of their contentions. A string of counsel appeared on behalf of the respondents, amongst them being Shri Shanti Bhushan, Shri V. M. Tarkunde, Shri R. B. Jethmalani, Shri section J. Sorabji, Shri A. B. Dewan, Shri C. K. Daphtary, Dr. N. M. Ghatate, Shri G. C. Dwivedi. Shri Santokh Singh, Shri Sharad Manohar, Shri Daniel Latifi and Shri Mayakrishnan. The learned Advocate General of Gujarat generally supported their submissions. The learned Attorney General contended that Article 21 is the sole repository of the right to life and personal liberty and if the right to move any court for the enforcement of that right is suspended by 377 the Presidential order issued under Article 359(1), the detenus have no locus standi to file the writ petitions and therefore these petitions must be dismissed without any further inquiry into the relevance of the material on which the grounds of detention are based or the relevance of the grounds or the bona fides of the detaining authority. If the MISA permits the non disclosure of grounds and indeed prevents their disclosure, there is no question of inquiring into the reasons or grounds of detention and courts must accept at its face value the subjective satisfaction of the detaining authority has recorded in the order of detention. "There is no half way house" asserted the Attorney General. But, not inconsistently with the basic submission that the detenus have no locus standi to file the petitions for habeas corpus, he conceded that the court may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorised to pass it, or if it is passed for a purpose outside those mentioned in section 3(1) of the MISA or if it does not bear any signature at all. The learned Additional Solicitor General indicated during the course of his argument the limits of judicial review in the event of the court rejecting the main submission of the Attorney General. He contended that section 16A(9) of MISA contains but a rule of evidence and is therefore not open to attack on the ground that it encroaches upon the jurisdiction of the High Court under Article 226 of the Constitution. Since section 16A(9) is not unconstitutional, no court can ask for the prosecution of the file relating to a detente or ask for the disclosure of the grounds of detention. If such disclosure is not made, no adverse inference can be raised by holding that by reason of non disclosure, the detenu case stands unrebutted. The learned Additional Solicitor General contended that there was no warrant for reading down section 16A(9) so as to permit disclosure to the court to the exclusion of the petition and if any inquiry is permissible at all into a habeas corpus petition, the inquiry must be limited to the following points: (1) Whether the order is made in exercise or purported exercise of power conferred by a law; (ii) If such law was pre emergency law, is it a valid law; (iii) whether the authority which passed the order is duly empowered to do so by the law. (iv) Whether the person sought to be detained is the person named in the order of detention; (v) Whether the stated purpose of the detention is one that comes within the law; (vi) Have the procedural safeguards enacted by the law been followed; and (vii) Where grounds are furnished (i.e. when 16 A does not apply) do such grounds ex facie justify the apprehension of the detaining authority or is it vitiated by a logical non sequitur ? Such an inquiry, according to the learned counsel, can never extend to an objective appraisal of the material and the information for the purpose of testing the validity of the subjective satisfaction of the detaining authority. The arguments advanced on behalf of the respondents covered a evidence but they may be summarized thus: H 1. The object of Article 359(1) and the effect of an order issued under it is to remove restraints against the 378 Legislature so that during the emergency, it is free to make laws in violation of the fundamental rights mentioned in the Presidential order. Under a Constitution which divides State functions into Executive, Legislative and Judicial, the executive functions must be discharged consistently with the valid laws passed by the Legislature and the orders and decrees passed by the Judiciary. The suspension of the right to enforce fundamental rights cannot confer any right on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace. Since there is a valid law regulating preventive detention, namely, the MISA, every order of detention passed by the Executive must confconfirm to the conditions prescribed by that law. Article 359(1) may remove fetters imposed by Part Ill but it cannot remove those arising from the principle or rule of law or from The principle of the limited power of the Executive under the system of checks and balances based on separation of powers . The obligation cast on the Executive to act in accordance with the law does not arise from any particular Article of the Constitution but from the inherent com compulsion arising from the principle of rule of law which is a central feature our constitutional system and is a basic feature of the Constitution. The suspension of the right to enforce Article 21 does not automatically entail the suspension of the rule of law. Even during emergency, the rule of law is not and cannot be suspended. The Presidential order under Article 359(1)may bar the enforcement of fundamental rights mentioned in the order by a petition under Article 32 before the Supreme Court. But, the Presidential order cannot bar the enforcement of rights other than fundamental rights by a petition filed under Article 226 in the High Court. Common law rights as well as statutory rights to personal liberty can be enforced through writ petitions filed under Article 226, despite the Presidential order issued under Article 359(1). Similarly, contractual rights, natural rights and non fundamental constitutional rights like those under Articles 256, 265 and 361(3) of the Constitution, can be enforced under Article 226. Article 226 empowers the High Courts to issue writs and directions for the enforcement of fundamental rights" "and for any other purpose". The essence of the inquiry in a Habeas Corpus petition ;9 whether the detention is justified by law or is ultra 379 vires the law. Such an inquiry is not shut out by the suspension of the right to enforce fundamental rights. If the Presidential order is construed as a bar to the maintainability of the writ petitions under Article 226 of the Constitution, that Article shall have bee amended without a proper and valid constitutional amendment. Article 21 of the Constitution is not the sole repository of the right to life or personal liberty. There is no authority for the proposition that on the conferment of fundamental rights by Part III, the corresponding, pre existing rights merged with the fundamental rights and that with the suspension of fundamental rights, the c corresponding pre existing rights also got suspended. Suspension of the right to enforce Article 21 cannot put a citizen in a worse position than in the pre constitution period. The pre Constitution right of liberty was a right in rem and was totally dissimilar from the one created by Article 21. 'The pre constitution rights was merely a right not to be detained, save under the authority of law. Civil liberty or personal liberty is not a conglomeration of positive rights. It is a negative concept and constitutes an area of free action because no law exists curtailing it or authorising its curtailment. Section 16A(9) of the MISA is unconstitutional as it encroaches upon the High Courts ' powers under Article 226 of the Constitution by creating a presumption that the grounds on which the order of detention is made and any information or materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State, so that it will be against the public interest to disclose the same. Section 18 of MISA as amended by Act 39 of 1975 which came into force with effect from June 25, 1975 cannot affect the maintainability of the present petitions which were filed before the Amendment. The dismissal of writ petitions on the around that such petitions are barred by reason of the Presidential order issued under Article 359(1) would necessarily mean that during the emergency no person has any right to life or personal liberty; and 15. If the detenus are denied any forum for the redress of their grievances, it would be open to the Executive to whip the detenus to start them, to keep them in solitary confinement and even to shoot them, which would 380 be a startling state of affairs in a country governed by a written Constitution having in it a chapter on Fundamental Rights. The Presidential order cannot permit the reduction of Indian citizens into slaves. The validity of the 38th and 39th Constitution (amendments Acts was not challenged by the respondents. The key to these rival contentions can be found in the emergency provisions contained in Chapter XVIII of the Constitution. The Presidential declaration of emergency is made final, conclusive and non justiciable by clause (5) of Article 352, which was introduced by the 38th Amendment retrospectively. But apart from the fact that the Constitution itself has given Finality to declarations of emergency made by the President, it is difficult to see how a Court of law can look at the declaration of emergency with any mental reservations. The facts and circumstances leading to the declaration of emergency are and can only be known to the Executive, particularly when an emergency can be declared, as provided in Article 352(3), before the actual occurrence of war, external aggression or internal disturbance, so long as the President is satisfied that there is imminent danger thereof. The actual occurrence of war or external aggression or internal disturbance can be there for anyone to see but the imminent danger of these occurrences depends at any given moment On the perception and evaluation of the national or international situation, regarding which the court of law can neither have full and truthful information nor the means to such information. Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts OF law. The High Courts whose judgements are under appeal have, with the greatest respect, failed to perceive this limitation on the power of judicial review, though in fairness to them it must be stated that none of them has held that the declaration of emergency is open to judicial scrutiny. But at the back of one 's mind is the facile distrust of executive declarations which recite threat to the security of the country, particularly by internal disturbance. The mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weighs the pros and cons of the political situation and substitutes his personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one 's own pre disposition, is conducive to a more realistic appraisal of the emergency provisions. A declaration of emergency produces far reaching constituencies. While it is in operation the executive power OF the Union, by reason of Article 353, extends the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. Secondly, the power of Parliament to make laws with respect to any matter includes, during emergency, the power to make laws conferring powers and imposing duties or authorising the conferring of powers 381 and imposition of duties upon the Union or Officers and authorities of the Union as respects that matter, notwithstanding that the matter is not enumerated in the Union List. Article 354 confers power on the President direct that the provisions of Articles 268 to 279, which deal with distribution of revenues between the Union and the States, shall have effect subject to such exceptions or modifications as the President thinks fit, but not extending beyond the expiration of the financial year in which the proclamation ceases to operate. A Proclamation of emergency automatically curtails the operation of Article 19. As provided in Article 358, while the Proclamation is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the Stale would but for the provisions contained in Part III be competent to make or to take. Any law so made ceases to have effect to the extent of the incompetency as soon as the proclamation ceases to operate. Then comes Article 359 which is directly in point. It authorises the President to issue an order declaring the suspension of the right to move any court for the enforcement of such of the rights conferred by Part III as the President may specify in his order. Clause (1A) which was introduced in Article 359 by tile 38th Amendment Act retrospectively has, inter alia, transported the provisions of Article 358 into Article 359 during the operation of an order made by the President under Article 359(1). The orders issued by the President in the instant case under Article 359(1) provide for the suspension of the right to move any court for the enforcement of the rights conferred by Articles 14, 19, 21 and clauses (4) to (7) of Article 22. Article 21 of the Constitution runs thus: "No person shall be deprived of his life or person liberty except according to procedure established by law. " The principal question for decision in these appeals is whether notwithstanding the fact that the order issued by the President under Article 359(1) suspends the right of every person to move any court for the enforcement of the right to personal liberty conferred by Article 21, it is open to a person detained under a law of preventive detention like the MISA to ask for his release by filing a petition in the High Court under Article 226 of the Constitution for the writ of habeas corpus. The writ of habeas corpus is described by May in his 'Constitutional History of England(1) as the first security of civil liberty. Julius Stone in 'Social Dimensions of Law and Justice(2) calls it a picturesque writ with an extraordinary scope and flexibility of application. The Latin term "habeas corpus" means 'you must have the body ' and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum. The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody. The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government. (1) Ed 1912, Vol. II, p. 130 (Chapter XI). (2) Ed. 1966. p. 203. 382 The liberty of the individual is the most cherished of human freedoms and even in face of the gravest emergencies, Judges have played a historic role in guarding that freedom with real and jealousy, though within the bounds, the farthest bounds, of constitutional power. The world wide interest generated by the lively debate in Liversidge vs Sir John Anderson and Anr.(1) has still not abated. And repeated citation has not blunted the edge of Lord Atkin 's classic dissent where he said: "I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executing minded than the executive. In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace In this case I have listened to arguments which might have been addressed acceptably to the Court of King 's Bench in the time of Charles I." Sir William Blackstone in his 'Commentaries on the Laws of England '(2) says that the preservation of personal liberty is of great importance to the public because if it were left in the power of ever the highest person to imprison anyone arbitrarily there would soon be an end of all other rights and immunities. "To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." The learned commentator goes on to add: "And yet, sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the Crown, by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected persons without giving any reason for so doing. ' ' May in his Constitutional History of England(3) says that during the course of the last century every institution was popularise and every public liberty was extended but long before that period English men had enjoyed personal liberty as their birthright. It was more prized and more jealously guarded than and other civil right. "The Star Chamber had fallen: the power of arbitrary imprisonment had been wrested from the Crown and Privy Council: liberty had been guarded by the Habeas Corpus Act . ". Speaking of the writ of habeas corpus May says that it protects the subject from unfounded suspicions, from the aggressions of power and from abuses in the (1) ; ; Lord Atkin, p. 244. (2) 4th Ed. Vol I. pp. 105 to 107. (3) Ed. 1912, p. 124, 130. 383 administration or justice. "Yet this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension. Rarely, however, has this been suffered without jealousy, hesitation, and remonstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion. Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the rights of individuals, in the interests of the State. " Dicey in his Introduction to the Study of the Law of the Constitution(1) says that: "During periods of political excitement the power or duty of the courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous Limitation on the authority of the executive government. Hence has arisen the occasion for situates which are popularly called Habeas Corpus Suspension Acts." E.C.S. Wade and Godfrey Phillips observe in their Constitutional Law(2) that in times of grave national emergency, normal constitutional principles must if necessary give way of the overriding need to deal with the emergency. According to the learned authors: "It has always been recognised that times of grave national emergency demand the grant of special powers to the Executive. At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament. Modern war demands the abandonment of personal liberty in that the duty of compulsory national service necessarily takes away for the time being the right of the individual to choose his occupation. ' The learned authors refer to the English practice of passing Habeas Corpus Suspension Acts in times of danger to the State. These Acts prevented the use of habeas corpus and as soon as the period of suspension was over anyone who for the time being had been denied the assistance of the writ could bring an action for false imprisonment. Suspension did not legalise illegal arrest, it merely suspended a particular remedy and therefore, a practice grew under which at the close of the period of suspension an Indemnity Act would be passed in order to protect officials from the consequences or any illegal acts which they might have committed under cover of the suspension of the prerogative writ. Thomas M. Cooley says in the "General Principles of Constitutional Law"(3) in the U.S.A. that though the right to H (1) 10th Edition. (2) 8th Ed., Chapter 48, 717, 718. (3) 4th Ed., Chapter XXXIV. 360 361. 384 the writ of habeas corpus by which the liberty of the citizens is protected against arbitrary arrests is not expressly declared in the American Constitution, it is recognised in Article I, section 9, cl. 2 which says that: The privileges of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. " It would appear that in America something similar lo the passing of Acts of Indemnity has been done by making provisions in State Constitutions. Thus, though the liberty of the individual is a highly prized free dom and though the writ of habeas corpus is a powerful weapon by which a common man can secure his liberty, there are times in the history of a Nation when the liberty of the individual is required to be subordinated to the larger interests of the State. In times of grave disorders, brought about by external aggression or internal disturbance, the stability of political institutions becomes a sine qua non of the guarantee of all other rights and interests. "To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible.(1) The "clear and present danger test" evoked by Justice Holmes in Schenck vs United Slates( ), may well be extended to cases like the present where there is a threat of external aggression. On the heels of American entry into the first World War on June 15, 1917, the Congress adopted the Espionage Act creating three new offences which went beyond the prohibition of spying and sabotage. It prescribed punishment of a fine of 10,000 dollars and 20 years imprisonment. A year later, the Act was amended by what is popularly called the Sedition Act which is rendered it illegal even to say anything to obstruct the sale of United States bonds or to say anything contemptuous regarding the form of Government of the United States. A unanimous court upheld Schenck 's conviction under the Act for propagating that compulsory service in the Armed Forces was "a monstrous wrong against humanity in the interest of Wall Street 's chosen few". The judgment was delivered in 1919 when the war was already over and Holmes J. held that things that can be said in times of peace will not be endured during times of war and no court will regard them as protected by any constitutional right. The emergency provisions were incorporated into our Constitution on the strength of experience gained in England and U.S.A. But the object of Article 359 is to confer wider power on the President than the power to merely suspend the right to file a petition for the writ if habeas corpus. Article 359 aims at empowering the President to suspend the right to enforce all or any of the fundamental rights conferred by Part III. It is in order to achieve that object that Article (1) Blackston 's Commentaries on the Laws of England, 4th Ed. III pp.125 126. (2) ; (1919). 385 359 does not provide that the President may declare that the remedy by way of ' habeas corpus shall be suspended during emergency. Personal liberty is but one of the fundamental rights conferred by Part III and the writ of habeas corpus is peculiar to the enforcement of the right to personal liberty. lt must follow that the suspension of the right to enforce the right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21. But then it is urged on behalf of the respondents that by their writ petitions, respondents did not seek to enforce the right to personal liberty conferred by Article 21 or possessed by them apart from it. They were really seeking a declaration that the order of detention was illegal for the reason that it did not comply with the requirements of the law under which it was passed. In support of this argument reliance is placed upon a passage in H.W.R. Wade 's Administrative Law(1) to the effect that habeas corpus is a remedy not only for the enforcement of the right to personal liberty but is also a remedy for the enforcement of the principle of ultra vires. This argument lacks substance and overlooks the realities of the situation. lt ay be open to a detenu by filing a petition for the writ of habeas corpus to contend that order under which he is detailed is ultra vires of the statute to which the order owes its existence. But one must have regard to the substance of the matter and not to mere from the real and substantial relief which the detention for by a writ of habeas corpus is that he should be freed from detention and the reason for the relief is that the order of detention is ultra vires. It is clear, apart from the Form in which the relief may or may not be clothed, that the respondents through their writ petitions were moving the High Courts for enforcing their right to personal liberty. The history of the writ of habeas corpus which is succinctly narrated in the late Mr. M. C. Setalvad 's 'The Common Law in India '(1) shows that the writ of habeas corpus which was in its inception a purely procedural writ gradually developed into a constitutional remedy furnishing a most powerful safeguard for individual freedom. Mr. Setalvad quotes that the writ has been described as "the key that unlocks the door to freedom". Respondents were surely not interested in obtaining an academic declaration regarding the ultra vires ' character of their detention. They wanted the door to freedom to be opened by the key of the habeas corpus writ. Equally untenable is the contention that article 226 which occurs in Chapter V, Part VI of the Constitution is an entrenched provision and, therefore, under Article 368 no amendment can be made to Article 226 without ratification by the Legislatures of not less than one half of the States. It is true that Article 220 is an entrenched provision which cannot suffer an amendment except by following the procedure prescribed by the proviso to Article 368 (2). But the Presidential order is issued under the Constitution itself and if its true construction produces a certain result, it cannot be said that some (1) 3rd Ed., pp. 127, 128 (2) Pages 37 41 (Ed 1960, Hamlyn Lectures) 27 833 SCI/76 386 other Article of the Constitution stands thereby amended. Article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcing of fundamental rights mentioned in the order shall be suspended. That may, in effect, affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus. But that does not bring about any amendment of Article 226 within the meaning of Article 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power. Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Articles cannot amount to an amendment of the other. It is also not correct to say that any particular interpretation of Article 359(1) will mean the abolition of the jurisdiction and power of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution. The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order. In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely takes away the locus standi of a person to move these Courts for the enforcement of certain fundamental rights during the operation of the Proclamation of Emergency. It is important to appreciate that the drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being to deprive the individual concerned of his normal right to move The Supreme Court or the High Court for the enforcement of The fundamental rights conferred by Part III of the Constitution. In Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1) a Constitution Bench of this Court, dealing with an order issued by the President on November 3, 1962 under Article 359(1), observed: ". Unquestionably, the Court 's power to issue a writ in the nature of Habeas corpus has not been touched by the President 's order, but the petitioner 's right to move this Court for a writ of that kind has been suspended by the order of the President passed under article 359 (1) . The President 's order does not suspend all the rights vested in citizen to move this Court but only his right to enforce the provisions of articles 21 and 22. Thus, as a result of the President 's order aforesaid, the petitioner 's right to Move this Court, but not this Court 's power under article 32 has been suspended during the operation of Emergency, with the result that the petitioner by no locus standi to enforce his right, if any, during the Emergency, According to the respondents, the limited object of Article 359(1) is to remove restrictions on the power of the legislature so that during the operation of the emergency it would be free to make laws in violation of the fundamental rights specified ;11 the Presidential order. This argument loses sight of the distinction between the provisions or (1) ; , 451 387 article 358 and article 359(1A) on the one hand and of article 359(1) on the other. article 358, of its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the executive to take action under a law which may thus violate article 19. Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency. Under article 359(1) the President is empowered to suspend the right of an individual to move any court for the enforcement of the rights conferred by Part III as may be mentioned in the order. Consequent upon such order, all proceedings pending in any court for the enforcement of the rights so mentioned remain suspended during the period that the Proclamation is in force or such shorter period as the order may specify. Article 359 (1) is thus wider in scope than article 358. This distinction has an important bearing on the main point under consideration because it shows that it was not enough to provide that nothing in article 19 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III, be competent to make or take. In order to effectuate the purposes of emergency, it was necessary further to provide that no person would have any right to move for the enforcement of his fundamental rights mentioned hl the Presidential order and that pending proceedings in that behalf shall remain suspended during the operation of the emergency. It seems elementary that a fundamental right can be enforced as much in regard to a law which takes away that right contrary to the provisions of the Constitution as against the Executive, if it acts contrary to the provisions of a law or without the authority of ' law. In view of he language of article 359(1) and considering the distinction between it and the provisions of article 358, there is no justification for restricting the operation of article 358 (1) as against laws made by the Legislature in violation of the fundamental rights. Reliance was placed by the respondents on the decisions of this Court in Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura(1) and Makhan Singh vs State of Punjab(2) in support of their contention that article 359(1) operates in the legislative and not in the executive field. These decisions do not support such a proposition. On the contrary, it is clear from the to decisions that the effect of the Presidential order under article 359(1) is to take away the locus standi of a person to move any court for the enforcement or his fundamental rights which are mentioned in the order. Neither of the two cases deals directly with the question G whether the operation of article 359(1) is restricted to the legislative field but, if at all, the ratio of those cases may be logically extended to cover executive acts also. During times of emergency, it is the Executive which commits encroachments on personal liberties and the object of article 359(1) is to empower the President to suspend the right to move any court for the enforcement of a right to complain against the actions of the Executive, no less than against the (1) (2) [1964] 4 section C. R. 797. 388 laws passed by The Legislature, if either the one or the other contravenes any of the fundamental rights mentioned in the order. This position was controverted by the respondents from several angles. It was contended that in a Constitution which divides State functions into Executive. Legislative and Judicial. the executive functions must be discharged consistently with the laws passed by the Legislature and the orders and decrees passed by the judiciary. The suspension of the right to enforce fundamental rights cannot confer any privilege on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace. Therefore, the argument proceeds, there being a valid law regulating preventive detention, namely the MISA, every order of detention passed by the Executive must conform to the conditions prescribed by that law. The current of thought underlying this argument was highlighted by a learned counsel for the respondents by saying that it is strange that in the face of a law passed by the Parliament, which in passing the law must assume that it will be obeyed, the Executive can flout the law with impunity by relying on the Presidential order issued under Article 359(1). Yet another point of view presented on this aspect of the case was that permitting the Executive to defy and disobey the law made by the Legislature is tentamount to destroying one of the important basic features of the Constitution that the Executive is bound by the laws made by the Legislature. Finally, it was urged that the Preamble to the Constitution speaks of a Sovereign Democratic Republic and, therefore, the Executives which is subordinate to the Legislature cannot act to the prejudice of the citizen save to the extent permitted by laws validly made by the Legislature which is the chosen representative of the people. In view of the true scope and object of Article 359(1), which has already been dealt with above, these arguments have to be rejected. In the first place, it is difficult to appreciate the argument of 'basic features ' because we are not concerned to pronounce upon tile validity of an amendment made to the Constitution by a parliamentary measures. We are concerned to understand the scope of Article 359(1) and what it implies. That Article is as much a basic feature of the Constitution as any other and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore, Article 359(1) which is an emergency measure, must be construed consistently with that position. The argument of basic feature is wrong for yet another reason that Article 359(1) does not provide that the Executive is free to disobey the laws made by the Legislature. Al the cost of repetition it must be said that what Article 359(1) achieves is merely the suspension of the right of an individual to move a court for the assertion of ' his fundamental rights which have been mentioned in the Presidential order, even if such rights are contravened either by the Legislature or by the Executive. To permit a challenge in a court of law to an order of detention, which is an executive action, on the ground that the order violates a fundamental right mentioned in the Presidential order, is to permit the detenu to enforce a fundamental right during emergency in a manner 389 plainly contrary to Article 359(1). The language of that Article, it is admitted on all hands, is clear and unambiguous. The constitutional consequences of a Proclamation of Emergency are grave and far reaching. Legislatures can, during emergency, make laws in violation of the seven freedom guaranteed by Article 19 the President has the power to suspend the right to move for the enforcement of all or any of the fundamental rights mentioned in the order issued under Article 359(1); the Executive power of the Union extends during emergencies to giving directions to any State or to the manner in which the executive power thereof is to be exercised. This particular power conferred on the Union Executive is in total violation of the provisions of Article 162 of the Constitution and indeed of the federal structure which is one of the principal features of our Constitution; in any State Executive fails to comply with the directions given by the Union Executive under Article 353(a), the "President 's rule" can be imposed on that State under Article 356, in which event the Parliament is entitled under Article 357(1) to confer on the President the power of the Legislature of that State to make laws The Parliament can even authorize the President to delegate such legislative power to any other authority. The democratic structure of the Constitution stands severely eroded in such a situation. Finally, Parliament acquires during emergencies the power to make laws on matters which are numerated in the State List. If consequences so fundamentally subversive of the basic federal structure of the Constitution can ensure during emergencies, it is not as revolting as may be appear at first sight that even if the Executive does not obey the mandate of the Legislature, the citizen is powerless to move any court for the protection of his fundamental rights, if these rights are mentioned in the Presidential order. A facet of the same argument was presented on behalf of the respondents with even greater force. It was urged that article 359(1) may remove fetters imposed by Part III but it cannot ever remove the fetters arising from the principle of rule of law or from the principle of the limited power of the Executive under a system of checks and balances based on separation of powers. The obligation cast on the Executive to act in accordance with law does not, according to the respondents, arise from any particular article of the Constitution but it arises from the inherent compulsion of the rule of law which is a central basic feature of our constitutional system. The suspension of the right to enforce Article 21 cannot automatically entail the suspension of the rule of law because even during an emergency the argument proceeds, the rule of law is not and cannot be suspended. The Executive has a limited authority under the Indian Constitution and it can act within the residual area as it pleases, so long as it does not act to the prejudice of the citizen. It is always incumbent on the Executive to justify its action on the basis of law and this, according to the respondents, is the principle of legality or the rule of law. The respondents ' argument that all executive action which operates to the prejudice of a person must have the authority of law to support it is indisputably valid in normal situations. In the absence of Proclamation of Emergency and in the absence of a Presidential order 390 Article 359(1) of the kind that we have in the instant case, the I executive is under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law, its action is liable to be challenged by an appropriate writ. That the rule of law must prevail in normal times is the rule of law under the Indian Constitution. But it is necessary to clear a misconception. Even though the compulsion to obey the law is a compulsion of normal times, Article 358 takes in those cases only in which the executive purports to act under the authority of a law. It does not envisage that the executives can ' act without the apparent authority of law. In other words, Article 358 enables the Legislature to make laws in violation of Article 19 and the Executive to act under those laws, despite the fact that the laws constitute an infringement of the fundamental rights conferred by Article 19. The argument of the respondents that the Presidential order under Article 359(1) cannot ever suspend the rule of law requires a close examination, particularly in view of some of the decisions of this Court which apparently support that contention. In State of Madhya Pradesh & Anr. vs Thakur Bharat Singh(1) the State Government, on April 24, 1963 made an order under section 3 of the Madhya Pradesh Public Security Act, 1959 directing that the respondent shall not be in any place in Raipur District, that he shall immediately proceed to and reside in a named town and that he shall report daily to a police station in that town. The order was challenged by the respondent by a writ petition under Articles 226 and 227 of the Constitution on the ground that section 3 infringed the fundamental rights guaranteed by Article 19(1)(d) and (e) of the Constitution. The respondent succeeded in the High Court which declared a part of the order invalid on the ground that section 3 (1) (b) of the Act was violative of Article 19(1)(d) of the Constitution. In appeal. it was contended in this Court on behalf of the State Government that so long as the state of emergency declared on October 20, 1962 was in force, the respondent could not move the High Court by a petition under Article 226 on the plea that by the impugned order his fundamental right guaranteed under Article 19(1)(d) was infringed. It was further contended on behalf of the State Government that even if section 3(1)(b) was held to be void. Article 358 protected legislative as well as executive action taken after the Proclamation of Emergency and therefore the order passed by the Government after the emergency was declared could not be challenged as infringing Article 19. Describing this latter argument as involving "a grave fallacy" a Constitution Bench of this Court dismissed the State 's anneal holding, that for acts done to the prejudice of the respondent after the declaration of emergency under Article 352. no immunity from" the process of the Court could be claimed under Article 358 of the Constitution since the order was not supported by and, valid legislation. Shah J who spoke on behalf of the Bench observed in his judgment that an executive action which operates to the prejudice of any person must have the authority of law to support it and that the (1) [1967] 2 S.C.R.454 391 terms of Article 358 do not detract from that rule. Article 358, according to this Court, did not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others but it merely provides that so long as the Proclamation of Emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. It is important to bear in mind that Bharat Singh 's case was concerned with a pre emergency law, though the impugned order was passed thereunder during the operation of emergency. The law having been passed in 1959, which was before the declaration of emergency, it had to comply with Article 19 and if it did not, it was void to the extent of the inconsistency. Since the law was held to be violative of Article 19 it could not claim any protection under Article 358. That article lifts restrictions on legislative power "while a proclamation of Emergency is in operation," that is to say, it enables laws to be made during the emergency, ever if they conflict with Article 19. The executive is then free to act under those laws. But, if the law is void for the reason that having been made prior to the emergency it violates Article 19, or if there is no law at all under the purported authority of which the executive has acted, the executive action is not protected by Article 358. Bharat Singh 's case is distinguishable for the additional reason that it was only concerned with the effect of Article 358 and no question arose therein with regard to any executive action infringing a fundamental right mentioned in a Presidential order issued under Article 359(1). I have already indicated the vital difference between Article 358 and Article 359(1). The latter bars the enforcement of any fundamental right mentioned in the Presidential order, thereby rendering it incompetent for any person to complain of its violation whether the violation is by the Legislature or by the Executive. In other words, Article 359(1) bars the remedy by depriving an grieved person of his locus to complain of the violation, of such of his fundamental rights as are mentioned in the Presidential Order. Respondents also relied in support of the same submission on the decisions of this Court in District Collector of Hyderabad & ors. vs M/s. 'Ibrahim & Co. etc.(1) Bennett Coleman & Co. and ors. vs Union of India & ors. ,(2) and Shree Meenakshi Milk Ltd. vs Union of India. (3) These decisions are founded on the same principle as Bharat Singh 's case and are distinguishable for the same reason. In Ibrahim case. the existing licences of recognised dealers in sugar were cancelled by the State Government and a monopoly licence was given to a Cooperative Stores thereby preventing the dealers by a mere executive order from carrying on their business. A question arose in the appeal whether the order of the State Government canceling the licences of the dealers was protected under Articles 358 and (1) (2) ; , 773 775. (3) , 405, 406 and 428 392 359 the Constitution as the President had declared a state of emergency on October 20, 1962. This question was answered in the negative on the ground that the executive order which was immune from attack is only that order which the State was competent to make but for the provisions contained in Article 19. Since the executive action of the State Government was invalid apart from Article 19, it was not immune from attack merely because a Proclamation of Emergency was in operation. The important point of distinction is that in Ibrahim 's case, the impugned order was not made under the authority reserved by the Defence of India ordinance or the rules made thereunder but was issued merely in pursuance of the policy laid down by the Central Government in entrusting the distribution of sugar exclusively to co operative societies. In Bennett Coleman Company 's case the impugned Newsprint Control Policy was an emanation of the old policy which was enunciated prior to the Proclamation of Emer ency. Relying on Ibrahim 's case and Bharat Singh 's case, this Court held that Article 358 does not authorise the taking of detrimental executive action during the emergency without any legislative authority or in purported exercise of power conferred by a pre emergency law which was invalid when enacted. The decision in Bennett Coleman Company 's case was followed in Meenakshi Mills ' case where the executive action taken during the emergency did not have the authority of any valid law and the impugned orders having been made under a pre emergency law were not immune from attack under Article 358. Respondents relied on a passage in the judgment of Ramaswami who spoke on behalf of the Court in ' Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors etc. vs Om Parkash & ors. ,(1) to the. effect that whatever legislative Power the executive administration possesses must be derived directly from the delegation of the legislature and exercised validly only within the limits prescribed. The Court emphatically rejected the notion of inherent or autonomous law making power in the executive administration of the country and observed that the rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control by law on the ground that such a notion is foreign to our basic constitutional connects. Respondents also relied upon the decision of the privy council in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria (2) where Lord Atkin observed that in accordance with the British jurisprudence no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. Our attention was repeatedly drawn to a further observation made by Lord Atkin that it is a tradition of British justice that judges should not shrink from deciding such issues in the face of the executive. These observations have been considered by this court in Makhan Shingh 's case where, speaking of behalf of the majority, Gajendragad (1) [1968]3 section C. R. 655. (2) ; , 670. 393 kar J. said that the sentiments expressed by Lord Aktin were noble and eloquent but it was necessary to have regard to the provision of our Constitution by which were governed and which has itself made emergency provisions in order to enable the nation to meet the challenge of external aggression or internal disturbance. The principle enunciated in Eleko 's case, however lofty and stirring, has no relevance here because we have to consider the meaning and effect of Article 359 (1) which has no parallel in the English law. Eleko 's principle is unquestionably supreme in times of peace and so is the validity of the observations made by Ramaswami J. in Om Prakash 's case. Both of those cases were concerned with a totally different problem, the problem of peace, not of war or internal disturbance. The 'Rule of Law ' argument like the 'Basic Feature ' argument is intractable. Emergency provisions contained in Part XVIII of the Constitution which Lure designed Lo protect the security of the State are as important as any other provision of the Constitution. If the true constriction and effect of article 359(1) is as I have stated it to be, it is impossible to hold that such a construction violates the rule of law. The rule of law, during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution. The Advocate General of Gujarat had peculiar problems to voice. arising out of the fluid and uncertain political situation in his State. He was unable to appreciate how the Executive Government of the State could defy a parliamentary mandate contained in the MISA, either as regards the procedural or the substantive part of that law. Whatever may be the requirements of emergency he seemed to contend, the Gujarat Government could not, save at grave peril to its existence, defy the provisions of a law made by the Parliament. The anguish and embarrassment of the learned Advocate General is understandable, but the short, answer to his contention is that, on the record. the Government of Gujarat has not been asked to flout the MISA and indeed no one can dispute the right of the State Government to ensure compliance with the laws of the land. Indeed that is its plain and foremost duty. The important consideration is that in the event of State Government coming to pass an order of detention in violation of MlSA the detenu will have no right to enforce his Corresponding fundamental right if it is mentioned in the Presidential order. The learned Advocate General built his argument as if. during emergencies, the executive is under an obligation to flout the law or the h ind. Article 359(1) neither compets nor condones the breaches by the executive of the laws made by the legislature. Such condonation is the function of an Act of Indemnity. I must now take up for consideration a very important plank of the respondents ' argument that Article 21 is not the sole repository of the right to life and personal liberty This argument has been presented before us from aspects too numerous to mention and scores of instances have been cited to buttress it. This was to some extent inevitable because quite a few counsel argued the same point and each 394 had his peculiar, favourite accent. I will try to compress the arguments without, I hope, sacrificing their thematic value The respondents ' arguments may be put thus: (1) Article 21 is not the sole repository of the right to personal liberty because that right can be found in Articles 19(1) (b), 20 and 22 also. In view of the decision in the Bank Nationalisation(1) case, which overruled Gopalan 's case, these rights are not mutually exclusive and therefore the suspension of the right to enforce Article 21 cannot affect the right conferred by Articles 19, 20 and 22. (2) Article 21 is not the sole repository of the right to personal liberty because, (i) an accused convicted of murder and sentenced to death can assert his right to life by challenging the conviction and sentence in appeal, in spite of the Presidential order under Article 359(1); (ii) if a person is wrongfully confined. he can ask for his personal liberty by prosecuting the offender in spite of the Presidential order; and (iii) if a money decree is passed against the Government, the decree can lie enforced even if the right to enforce the right to property is suspended by the 'Presidential order. (3) Prior to the enactment of the Constitution statutory, contractual and common law rights were in existence and those rights can be taken away only by the Legislature. They cannot be affected by the Presidential order. The pre Constitution common law and statutory rights to personal liberty continued in force by reason of Article 372 of the Constitution, since those rights were not repugnant to any provision of the Constitution. If the fundamental right to personal liberty is suspended by the Presidential order, the pre Constitution laws will begin to operate by reason of the their of eclipse. There is no authority for the proposition that on the conferment of fundamental rights by the Constitution, the corresponding pre existing rights Merged in the fundamental rights and that with the suspension of fundamental rights, the corresponding pre existing rights also got suspended. Article 21 is different in content from the common law right to personal liberty which was available against private individuals also. Since Article 21 merely elevates the right of personal liberty to the status of a fundamental right, the pre Constitution rights cannot be suspended by the Presidential order. The object of Article 21 is to give and not to take. In fact, the very language of that Article shows that instead of conferring the right to personal liberty, it assumed its existence in the first place and then proceeded by a negative provision to prohibit its deprivation. Examples of such pre Constitution rights are: (1) rights available under the Indian Penal Code and the Criminal Procedure Code; (ii) rights available under the law of torts. especially the rights to sue for damages for false imprisonment. and (iii) the remedy of habeas corpus available under section 491, Criminal Procedure Code, since the year 1923. (1) ; , 578. (2) ; , 395 (4) Non fundamental constitutional rights like those arising under Articles 256, 265 and 361(3) or natural rights or contractual rights or the statutory rights to personal liberty are not affected by the Presidential order. Statutory rights can only be taken away in terms of the statute and not by an executive flat. By reason of Article 256. the executive power of every state must ensure compliance with the laws made by the Parliament. The executive power of the States must therefore comply with section 56 and 57 of the Criminal Procedure Code and a person aggrieved by the violation of those provisions can enforce his statutory right to personal liberty in spite of the Presidential order. By Article 265 no tax can be levied or collected except by authority of law. A person affected by the violation of this provision can enforce his right to property even if Article 19 is suspended. If a process happens to be issued against the Governor of a State in contravention of Article 361(3), the Governor can exercise his right to personal liberty despite the Presidential order under Article 359(1) . Similarly, in cases not covered by section 16A of the MISA, if the Advisory Board opines that the detention is unjustified, the detenu can compel the Government to accept that opinion, in spite of the Presidential order. (5) Even after the passing of a Presidential order, Parliament may create new rights to personal liberty and such rights can be enforced in spite of the Presidential order. (6) Civil liberty or personal liberty is not a conglomeration of position rights. It operates in an area of free action and no law can possibly curtail it. (7) If a law affecting the fundamental right to personal liberty is void for want of legislative competence. , it can be challenged in spite of the Presidential order (8) The suspension of the right to enforce personal liberty cannot confer a licence on executive officers to commit offences against the law of the land, and if they do so, they can be brought to book in spite of the Presidential order. I look at the question posed by the respondents from a different angle. The emergency provisions of the Constitution are designed to protect the Security of the State and in order to achieve that purpose, various powers have been conferred on the Parliament and the President by Chapter XVIII of the Constitution. One of such powers is to be found in Article 359(1) under which the President, during the operation of the emergency, can issue an order suspending the right to move any court for the enforcement of all or any of the fundamental rights conferred by Part III. Proceedings commenced prior to the issuance of such an order, including proceeding s taken prior to the declaration of the emergency itself, automatically remain suspended during the emergency or for such shorter period as the President may in his order specify. The object of empowering the President to issue an order under Article 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the 396 Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III, which to the seems totally devoid of meaning and purpose. There is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right, leaving all other rights to personal liberty intact and untouched. In times of emergencies the executive, unquestionably though unfortunately, is constrained to take various forms of action in derogation of the rights of citizens and others, including the cherished right to personal liberty. The Constitution aims at protecting the executive, during the operation of emergency, from attacks on the action taken by it in violation of the rights of individuals. Accordingly, in so far as the right to personal liberty, for example, is concerned one of the objects of the emergency pro visions is to ensure that no proceeding will be taken or continued to enforce that right against the executive during the operation of the emergency. The executive is then left free to devote its undiluted attention to meeting the threat to the security of the State. This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency, except to the extent to which the right is conferred by Part III of the Constitution, The existence of the right to personal liberty in the pre Constitution period was surely known to the makers of the Constitution. The assumption underlying the respondent 's argument is that in spite of that knowledge, the Constituent Assembly decided that all those rights will reign supreme in their pristine glory even during the emergency and what will remain in abeyance is only the enforcement of the right to personal liberty conferred by Part III. The right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre Constitution era. If the arguments of the respondents is correct no action to enforce the right to personal liberty can at all fall within the mischief of the presidential order even if it mentions Articles19, 20, 21 and 22 because, every preliminary objection by the Government to a petition to enforce the right to personal liberty can be effectively answered by contending that what is ' being enforced is either the natural right to personal liberty or generally, the pre Constitution right to personal liberty. The error of the respondents ' argument lies in its assumption, and in regard to the argument of some of the counsel in the major articulate premise, that the qualitative content of the non constitutional or pre constitutional right to personal liberty is different from the content of the right to personal liberty conferred by Part III of the Constitution. The right to personal liberty is the right or the individual to personal freedom. nothing more and nothing less. That right along with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it. Article 359 (1) enables the President to suspend the enforcement even of those rights which were sanctified by being lifted out of the common morass of human rights. If the enforcement of the fundamental 397 rights can be suspended during an emergency, it is hard to accepts That the right to enforce non fundamental rights relating to the same subject matter should remain alive. Article 359(1) contains three important clauses: (1) The Proclamation of Emergency must be in operation at the time when the President issues his order; (2) The President must issue an order declaring the suspension of the right to move any court; and (3) The power of the President to declare such suspension can extend to such rights only as are conferred by Part III. If these three conditions are satisfied, no person can move any court for the enforcement of such of the rights conferred by Part III as are mentioned in the Presidential order. The first and foremost question to ask when a proceeding is filed to enforce a right as against the Government while a Proclamation of Emergency is in operation is, whether the right is mentioned in the Presidential order and whether it is the Kind of right conferred by Part III. Article 21, for example, confers the right to life and personal liberty. The power of the President therefore extends under Article 359(1) to the suspension of the right to move any court for the enforcement of the right to life and personal liberty. The President cannot suspend the enforcement of any right unless that right is included in Part III which confers fundamental rights. The President, in my opinion, would be acting within the strict bounds of his constitutional power if, instead of declaring the suspension of the right to enforce the right conferred by Article 21 he were to declare that "the right not to be deprived of life and personal liberty except according to procedure established by law" shall remain suspend during the emergency. Article 359 (1) does not really contemplate that while declaring the suspension of the right to move any court, the President must or should specify the Article or the Articles of the Constitution the enforcement of rights conferred by which shall be suspended. What Article 359 (1) contemplates is that the President can declare the suspension of the right to move any court for the enforcement cf the rights mentioned in Part III. The words "conferred by Part III" which occur in Article 359(1) are not intended to exclude or except from the preview of the Presidential order, rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era, apart from the Constitution. The emphasis of the Article is not the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are conferred by Part III. To put it differently. the words ' 'conferred by Part III" are used only in order to identity the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of ' the President so as to put those rights which exist or which existed apart from the Constitution, beyond the reach of ' the Presidential order. The respondents by their petitions are enforcing their right to personal liberty and that right is a right conferred by or mentioned in Part III or the Consti 398 tution. As I have said above, if instead of saying that the right to enforce the right conferred by Article 21 shall be suspended the President were to say that the right not to be deprived of life or personal liberty except according to procedure established by law will remain suspended, no argument of the kind made before us could reasonably have been made. The true effect of the Presidential order, though worded in the way it is, is the same as it would have been, had it been worded in the manner I have indicated. It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution, either by way of a natural right, statutory right, common law right or a right available under the law of torts. Whatever may be the source of the right and whatever may be its justification, the right in essence and substance is the right to personal liberty. That rights having been included in Part III, its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 359(1). The view which I have taken above as regards the scope and meaning of Article 359(1) affords in my opinion a complete answer to the contention of the respondents that since Article 21 is not the 1) sole repository of the right to personal liberty, the suspension of the right to enforce the right conferred by that Article cannot affect the right to enforce the right of personal liberty which existed apart from that Article. I have held that on a true interpretation of the terms of the Presidential order read with Article 359(1), what is suspended is the right to move for the enforcement of the right to personal liberty whether that right is conferred by Constitution or exists apart from and independently of it. Otherwise, the Constitution has only done much ado about nothing. All the same I would like, briefly, to deal with the argument of the respondents on its own merit, particularly the illustrations cited in support of that argument. It is true that in view of the decision in the Bank Nationalisation case,(1) the right conferred by Articles 21 and 19 cannot be treated as mutually exclusive. But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another . The "right conferred by Article 21" is only a description of the right of personal liberty in order to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21. The circumstance that the pre Constitution rights continued in force after the enactment of the Constitution in view of Article 372 does not make any difference to this position because, even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision (1) ; , 578 399 of the Constitution, all rights to personal liberty having the same content as the right conferred by Article 21 would fall within the mischief of the Presidential order. The theory of 'eclipse ' has no application to such cases because; that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts. When the repugnancy is removed, the eclipse also is removed and he law becomes valid. As regards the doctrine of 'merger ' it is unnecessary to go to the length of saying that every prior right to personal liberty merged in the right to personal liberty conferred by Part III. Whether it merged or not, it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty. In that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III. As regards the illustrations, it is neither proper nor possible to take each one of them separately and answer them. Hypothetical illustrations cannot establish a point and practical difficulties have to be solved as and when they arise. But some of the more important illustrations taken by the respondents ' counsel seem to me to have a simple answer. For example, when an accused challenges his conviction for murder and the sentence of death imposed on him for that offence, his remedy by way of an appeal is not barred by the Presidential order because he is only trying to get rid of a judgment which holds him guilty of murder. It is not he who moved the court for his personal liberty but it is the prosecution which dragged him to the court to prove the charge of murder against him. The accused only defends the charge of criminality whether it is in the trial court or in a higher court. Similarly, if a person is wrongfully confined, the prosecution of the offender is not intended or calculated to secure the personal liberty of the victim he court may in proper cases pass an order releasing the complainant from wrongful confinement but the true object of the prosecution is to punish the person who has committed an offence against the penal law of the land. As regards decretal rights against the Government, what the decree holder enforces in execution is not his right to property. The original cause of action Merges in the decree and therefor what is put into execution is the rights arising under the decree. The illustration regarding The issuance of a process against the Governor of a State need not be pursued seriously because such an event is hardly ever likely to happen and id it does, the gubernatorial rights may possibly withstand the Presidential order under Article 359(1) . As regards the flouting of the opinion of the Advisory Board by the Government, a writ of mandamus compelling the Government to obey the mandate of the law may perhaps stand on a different hooting as the very nature of such a proceeding is basically different. Lastly, it is unrealistic to believe that after the passing of the Presidential order suspending the 400 existing constitutional rights, Parliament would create new rights to personal liberty so as to nullify the effect of the Presidential order. The easier way for the Parliament would be to disapprove of the Proclamation of emergency when it is placed before it under Article 352(2) (b) of the Constitution or to disapprove of the Presidential order issued under Article 359(1) when it is placed before it under Article 359(3) of the Constitution. But as I have said earlier, it is difficult to furnish a clear and cogent answer to hypothetical illustrations. In the absence of necessary facts one can only make an ad hoc answer, as I have attempted to do regarding the possible issuance of a process against the Governor of a State. Actually, Article 361(3) speaks of a "Process" for the arrest or imprisonment of a Governor issuing from any court. Fundamental rights can be exercised as against judicial orders but the circumstances in which such a process may come to be issued, if at all, may conceivably affect the decision of the question whether a presidential order issued under Article 359(1) can bar the remedy of an aggrieved Governor. In so far as the illustrative cases go, I would like to add that Article 256 which was chosen by the respondents as the basis of an illustration cases not seem to confer any right on any individual. That Article appears in Part XI which deals with relations between the Union and the States. A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievances at the instance of the private party that Article 256 has not been complied with by a State Government. As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation, I prefer to express no firm opinion though the greater probability is that such a challenge may fail in face of a Presidential order of the kind which has been passed in the instant case. I have held above that the existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting those rights from the purview of the order. I may add that the decision of this Court in Dhirubha Devisingh Gohil vs The State of Bombay(1) is an authority for the proposition that if any pre Constitution right has been elevated as a fundamental right by its incorporation in Part III, the pre existing right and the fundamental right are to be considered as having been grouped together as fundamental rights "conferred" by the Constitution. The decision in Makhan Singh vs State of Punjab) also shows that once right to obtain a direction in the nature of habeas corpus became in 1923 a statutory right to a remedy after the enactment of section 491 of the Code of Criminal Procedure, it was not open to any party to ask for a writ of habeas corpus as a matter of common law. It was contended for the respondents that the High Court have jurisdiction under Article 226 to issue writs and directions not only for the enforcement of fundamental rights but "for any other purpose" and since by their petitions they had really asserted their non (1) ; (2) [1964] 4 section C. R. 797, 818 819. 401 fundamental rights the High Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential order. This argument cannot be accepted because the entire claim of the resonants is that the order of detention are in violation of the MISA, which in substance means that the respondents have been deprived of their personal liberty in violation of Article 21 of the Constitution. By that Article, no person can be deprived of his life or personal liberty except according to procedure established by law. The grievance of the respondents is that they have been deprived of their personal liberty in violation of the procedure established or prescribed by the MISA. In substance therefor they are complaining of the violation of a fundamental right, which it is not open to them to do in view of the Presidential order by which the right to move any court for the enforcement of the right conferred by Article 21 has been suspended. This judgment, long as it is, will be incomplete without least a brief discussion of some of the important decisions of this Court which were referred to during the course of arguments time and again. Before doing so, a prefatory observation seems called for. The Earl of Halsbury L. C. said in Quinn vs Leathem( ') that the generality of the expressions which may be found in a judgment are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expression are to be found. This Court in the State of orissa vs Sudhansu Sekhar Misra & Ors.(2) uttered the caution that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. Counsel have not done any such shearing but I thought I might beging the study of cases with I se1f admonition. A decision of this Court on which the greatest reliance was placed by the respondents is Makhan Singh vs State of Punjab (3) The appellants therein were detained under Rule 30(l ) (b) of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance, 1962. They applied for their release to the Punjab and Bombay High Court under section 491(1)(b) of the Code of Criminal Procedure? their contention being that certain section of the Defence of India Act and Rule 30(l) (b) of the Defence of India Rules were unconstitutional since they contravened their fundamental rights under Articles 14, 21 and 22(4) (5) and (7) of the Constitution. The High Court held that in view of the Presidential order which was issued on November 3, 1962 under article 359(1) of the Constitution, the petitions of habeas corpusfiled by the appellants were barred. Being aggrieved by the orders dismissing their petitions, the detenus filed appeals in this Court which were heard by a Constitution Bench consisting of 7 Judges. The judgment of the majority was delivered by Ganjendragadkar J. Sulbba Rao J. gave a dissenting judgment. (1) ; , 506. (2) ; , 163. (3) [1964l 4 section C. R. 797. 28 833 Supr Cl/76 402 Both the majority and the minority judgments agree that the Presidential order would take away the right to move the Supreme Court under article 32 and the High Court under article 226 for the enforcement of the rights mentioned in the order. But while the majority took the view that the petition under section 491 of the Criminal Procedure Code was also barred, Subha Rao J. held that the petitioners ' right to ask for relief by filing an application under section 491 was not affected by the Presidential order. This difference in the view of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book after April 1, 1974 when the new Code of Criminal Procedure came into force. The conclusion of the Court in Makhan Singh 's case may be summed up thus: 1. article 359 is reasonably capable of only one construction as its language is clear and unambiguous. The suspension of article 19 contemplated by article 358 removes during the pendency of the emergency the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter. As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted, article 19 which was suspended during emergency is automatically revived and begins to operate. 4. article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. What the Presidential order purports to do by virtue of the power conferred of the President by article 359 ( 1 ) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights. The Presidential order cannot widen the authority of the legislatures or the executive; it merely suspends the rights to move any court to claim a relief on the ground that the rights conferred by Part III have been contravened if the said right are specified in the order. If at the expiration of the Presidential order, Parliament passes any legislation to protect executive action taken during the pendency of the Presidential order and afford indemnity to the executive in that behalf, the validity and the effect of such legislative action may have to be carefully scrutinised. 403 6. The words "the right to move any court" which occur article 359(1) refer to the right to move any court of . competent jurisdiction including both the Supreme Court and the High Court. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and whether before granting the relief claimed by the citizen it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining The question of the alleged infringement of the said specified fundamental rights that is a proceeding which falls under article 359(1) and would, therefore, be hit by the Presidential order issued under the said Article. The right to ask for a writ in the nature of habeas cor pus which could once have been treated as matter of Common Law has become a statutory right after 1923, and after section 491 was introduced in the Cr. P. C., it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provision of section 491(1)(b) itself. Whether or not the proceedings taken under section 491 (1) (b) fall within the purview of the Presidential order, must depend upon the construction of article 359 ( 1 ) and the order, and in dealing with this point, one must look at the substance of the matter and not its form. It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under article 226(1) of article 32(1) of the Constitution, or he may take a proceeding under section 491(1)(b) of the Code. But despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking to enforce is the same. Therefore the prohibition contained in article 359(1) and the Presidential order will apply as much to proceedings under section 491(])(b) is to those under article, 226(1) & article 32(1). If the detenu is prohibited from asking for and order of release on account of the Presidential order, it would not 404 be open to him to claim a mere declaration either under A section 491 or under Articles 32 or 226 that the detention unconstitutional or void. The right specified in article 359(1) includes the relevant right, whether it is statutory, constitutional or constitutionally guaranteed. After recording these conclusions the majority judgment proceeded to consider the question as to which are the pleas which are open to a person to take in challenging the legality or the propriety of his detention, either under section 491 ( I ) (b) or under article 226(1 ) . The conclusions of the Court on this question are as follows: (a) "If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside article 359(1) and consequently outside the Presidential order itself." (Emphasis supplied) Accordingly if a detenu is detained in violation of the mandatory provisions of the Act it would be open to him to contend that his detention is illegal. "Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. '` (b) The exercise of a power malafide is wholly outside the scope of the Act conferring the power and` can always be successfully challenged. (c) It is only in regard to that class of cases falling under section 491(1)(b) where the legality of the detention is challenged on grounds which fall under article 359(1) and the Presidential order that bar would operate. In all other cases falling under section 491(1) the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law. (d) If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore. ill valid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presidential order. In terms, it is not plea which is relatable to the fundamental rights specified in the said order. lt is a piea which is independent of the said rights and its validity must be examined. (The Court, however, rejected the contention that the impugned provisions of the Act suffered from the vice of excessive delegation.) 405 No judgment can be read as if it is a statute. Though the judgment of the majority contain the conclusions set out in (a) to (d) above, I see no doubt that these conclusions owe their justification to the peculiar wording of the Presidential order which was issued in that case. The order dated November 3, 1962, which was the subject matter of Makhan Singh 's case, has been set out at the beginning of this judgment. That order suspends the right of a person to enforce the rights conferred by Articles 14, 21 and 22 "if. such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder". The Presidential order dated June 27, 1975 with which we are concerned in the instant case docs not contain ally clause similar to the one extracted above from the order dated November 3, 1962. The inclusion of that clause ill the earlier order has a significant impact on the question under consideration because, under the earlier Presidential order the right to Move the court was taken away only i f a person was deprived of his rights under the Defence of India ordinance or under any rule or order made under the ordinance. A petition for habeas corpus file(l during the operation of the Presidential order dated November 3, 1962 was not barred at the threshold because the detenu was entitled to satisfy the court that though his detention purported to be under the Defence of India Ordinance or the Rules it was in fact not so. The detenu could establish this by satisfying the court that the detaining authority had no power to detain him, which could be shown by pointing out that the pre conditions of the power to detain were not fulfilled. It was also open to the petitioner to establish that the order was vitiated by mala fides because a mala fide order has no existence in the eye of law and mala fides would take the order out or the statute. The same state of affairs continued under the two subsequent Presidential orders dated November 16, 1 974 and December 23 , l974. All the three orders were conditional and were dependent for their application on the fulfillment of the condition that the person concerned was deprived of his rights under the Defence of India ordinance or any rule or order made under it. The Presidential order of June 27, 1975 makes a conscious and deliberate departure from the three earlier orders, the object obviously being to deprive the detenu of the argument that he has been detained under an order only purports to have been passed under a particular Act but is ill fact n derogation thereof, the terms of the Act having not been complied with. The order of June 27, 1975 is not subject to ally condition precedent for its application and, therefore, there is no question of the detenu satisfying the court that any pre condition of the power of detention has not fulfilled. Some of the observations in Makhan Singh case may appear to support the argument that certain pleas which are refferred to therein are outside the scope of Article 359(1) itself. Which great respect, those observations really mean that the pleas are outside the Presidential order. Article 359(1) is only an enabling provision and the validity of a plea cannot be tested which reference to that Article. The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359 (1) 406 It is the Presidenial order passed in pursuance of the powers conferred by, that Article by which such a consequence can be brought about. It would be useful in this connection to refer Lo the decision of this Court in Dr. Ram Manohar Lohia vs State of Bihar & ors. ( ') The appellant therein was also detained under rule 30(l)(b) of the Defence of India Rules, 1962, and he moved this Court under Article 32 of the Constitution for his release. the petition was argued on the basis that it was filed for the enforcement of the right to personal liberty under Articles 21 and 22 of the Constitution. A preliminary objection was raised on behalf of the Government that the petition was barred by reason of the Presidential order dated November 3, 1962, the same as in Makhan Singh 's case (supra) Sarkar J., who shared the majority view repelled the preliminary objection by saying that the petition could have been dismissed at the threshold if the order of November 3, 1962 were to take away all rights to personal liberty under Articles 21 and 22. According to the learned Judge, the particular Presidential order did not do so in that, it was a conditional order which deprived a person of his right to move a court for the enforcement of a right to personal liberty only if he was deprived of it by the Defence of India Act or any rule or order made under it. "If he has not been so deprived, the order does not take away his right to move a court. " This shows that if the first Presidential order was unconditional like the order in the instant case, Dr. Lohia 's petition would have been rejected by this Court at the threshold. The judgment of Hidayatullah J., who on behalf of himself and Bachawat J. concurred with the view of Sarkar J., also shows that the conditional Presidential order left an area of inquiry open as to whether the action was taken by a competent authority and was in accordnce with the Defence of India Act and the rules made thereunder. Yet another case arose under rule 30(l)(b) of the Defence of India Rules, 1962 involving the interpretation of the first Presidential order dated November 3, 1962. That case is K. Anandan Nambiar & Anr vs Chief Secretary, Government of Madras & ors.(2) Gajendrgadkar C. J., who delivered the judgment of the Constitution Bench referred to Makhan Singh 's case and pointed out that the sweep of the. Presidential order dated November 3, 1962 was limited by its last clause and, therefore, it was open to the detenu to contend that the order of detention was contrary to the conditions prescribed in that behalf by the Defence of India Act or the rules made thereunder In State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr.(3) the respondent, who was detained under an order passe under section 30(l) (b) of the Defence of India Rules, 1962, sought permission from the State Government for publishing a book which he had written while ill jail. On the Government refusing the per (1) ; (2) [1966] 2 .S.C.R.406. (3) [1966] 1 S.C.R.702 407 mission, he filed a petition under Article 226 of the Constitution for an appropriate direction and after that petition was allowed by the A High Court, the Government of Maharashtra filed an appeal in this Court. Subba Rao J., who delivered the judgment of the Bench, observed while dismissing the appeal that the President 's order dated November 3, 1962 was a conditional order and, therefore, if a person was deprived of his personal liberty not under the Act or a rule or order made thereunder but in contravention thereof, his right to move the court in that regard would not be suspended. These judgments bring out clearly the ratio of Makhan Singh 's case which arose out of the first Presidential order dated November 3, 1962. The Presidential order with which we are concerned in The instant case is not subject to the pre condition that the detenu should have been deprived of his rights under any particular Act and, therefore, there is no scope for the inquiry whether the order is consistent or in conformity with any particular Act. This important distinction has not been fully appreciated in some of the judgments under appeal. The observations contained in the majority judgment in Makhan Singh 's case that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether in spite of the Presidential order dated June 27, 1975 it is open to the respondents to show that the order of detention in any particular case is vitiated by mala fides. The proposition that a mala fide order has no existence in the eye of law is not peculiar to Makhan Singh 's case but has been accepted in various decisions of this Court, two of them being Jaichand Lall Sethia vs State of West Bengal or.(2), and Durgadas Shirali vs Union of India & ors.(2) A mala fide exercise of power does not necessarily imply 'any moral turpitude and may only mean that the statutory power is exercised for purposes other than those for which the power was intended by law to be exercised. In view of the fact that an unconditional Presidential order of the present kind affects the locus standi of the potitioner to move any court for the enforcement of any of his fundamental rights mentioned in the order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the . So long as the statutory prescription can be seen on the face of the order to have been complied with, no further inquiry is permissible as to whether the order is vitiated by legal mala fides. As regards mala fides in the sence of malice in fact, the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order. Makhan Singh 's case as also Jaichand Lall Sethia 's and Durgadas Shirali 's arose under the Defence of India Rules, 1962 and the relevant Presidential order which applied was the one dated November 3, 1962 which, as stated above, was a condi H (1)[1966] Supp. S.C.R.464. (2)[l966] 2 S.C.R.573. 408 tional order. If in any given case an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case. But short of such ex facie vitiation, any challenge to a detention order or. the ground of actual mala fides is also excluded under the Presidential order dated June 27, 1975. Section 16A(9) of the MISA which was introduced by the Third Amendment Ordinance, 16 of 1975, with effect from June 29, 1975 must make a significant difference to the question whether in spite of the Presidential order, it is open to a detenu to challenge hi detention on the ground of make files. Prior to the enactment of section 16A(9), the detaining authority was under an obligation by reason of section 8(1) of the MISA to communicate to the detenu the grounds of detention. The only exception was as stated in section 8 (2 ), that the detaining authority need not disclose facts which it considers to be against the public interest to disclose. Section 16A(l) provides that the pro visions of section 16A shall have effect during the period of operation of Proclamation of Emergency issued on December 3, 1971 and on June 25, 1975 or for a period of 12 months from June 25, 1975 whichever period is the shortest. By sub section (2) of section l6A, the case of every person against whom an order of detention was made under the MISA on or after June 25, 1975 but before the commencement of section 16A on June 29, 1975 is required to be reviewed by the appropriate Government for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency. the answer be in the affirmative, the Government is required to make a declaration to that effect By sub section (3), whenever an order of detention is made under the Act after June 29, 1975 the officer making the order of detention or the appropriate Government is similarly required to consider whether the detention of the persons is necessary for dealing effectively with the emergency. If so a declaration is required to be made to that effect. Sub section (9)(a) of section 16A provides that the grounds on which an order of detention is made against any person in respect of whom a declaration is made under sub section (2) or sub section (3) of section 16A and any information or materials on which such grounds are based "shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such grounds, information or material or any document containing such ground, information or material. " Clause (b) of section 16A (9) provides that no person against whom an order of detention is made under sub section (1) of section 3 shall be entitled to the communication or disclosure of any such ground, information or material, as is referred to in clause (a) or the production to him of ally document containing such ground, information or material. 409 I will deal with the constitutionality of section 16A(9) later but on the assumption that it is valid, it is plain that not only is a detenu in regard to whom the necessary declaration is made not entitled to be furnished with the grounds of detention or the material or information on which the grounds are based, but neither the Government nor the officer passing the order of detention can communicate or disclose the grounds, material or information they are deemed to refer to matters of State and against the public interest to disclose In view of this cast iron prohibition, it is difficult to see how, at least those detenus falling within sub sections (2) and (3) of section 16A can possibly establish, even prima facie a charge of factual mala fides It is the grounds of detention from which generally a plea of mala fides is spelt out and if the court has access to the grounds, the material and the information, it becomes possible to unravel the real motive of detention. on the absence of these aids, a charge of fides can only The a fling in the air and cannot hope to succeed. The observation in Makhan Singh 's case, therefore, that the exercise, of a power mala fide can always be successfully challenged could not apply to cases falling under sub sections (2) and (3) of section 16A, by reason of the provisions contained in sub section (9) of that section. Turning to the constitutional validity of section 16A(9), the contention of the respondents is that clause (a) of section 16A(9) by which the grounds of detention and the information and materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose is not a genuine rule of evidence but is designed to encroach upon the jurisdiction of the High Courts under Article 226 of the Constitution and is, therefore, void. It is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes into direct conflict with the High Court 's jurisdiction under Article 226 because it would be impossible for any High Court to consider the validity of an order of detention when a petition for habeas corpus comes before it, if the law prohibits the disclosure of the grounds of detention and the necessary information or materials to the High Court. It is a relevant consideration for examining the charge that the true purpose of section 16A(9) is to encroach on the powers of the High Court under Article 226, that the operation of section 16A itself is limited to the period during which the two proclamations of emergency dated December 3, 1971 and June 25, 1975 are in operation or for a period of 12 months from June 25, 1975 whichever period is the shortest. Following the proclamations of emergency, the President has issued orders under Article 359 (1) By the order dated Junc 27, 1975 the very locus standi of the detenu to enforce any of his fundamental rights mentioned in the Presidential order is taken away and consequently, there is no matter of substance into which the High Courts in the exercise of their writ jurisdiction can legitimately inquire. The injunction contained in section 16A(9) is from this point of view innocuous, for it purports to create a check 410 on a power which for all practical purposes has but a formal existence. Section 16A(9) is in aid of the constitutional power conferred by Article 359(1) and further effectuates the purpose of the Presidential order issued under that Article. If so it cannot be declared unconstitutional. Quite apart from this position, I am unable to agree that the rule enunciated in section 16A(9) is not a genuine rule of evidence. It is true that grounds of detention used to be disclosed before the emergence of section 16A(9) but that does not mean that the grounds on which the order of detention is based or the information or materials on which the grounds are based are not or cannot be of a confidential nature. More likely than not, such grounds, material and information would be of a confidential nature relating to matters of State which would be against the public interest to disclose. Instead of leaving each individual matter to be judged under section 123 of the Evidence Act by the Head of the Department concerned, who can give or withhold the permission as he thinks fit, Parliament would appear to have considered that since the grounds, material and information in detention cases are of a confidential nature, it would be much more satisfactory to provide that they shall be deemed to refer to matters of State. If section 16A(9) is unconstitutional so would sections 123, 124 and 162 of the Evidence Act. Section 123 gives the necessary discretion to the Head of the Department concerned. By reason of section 124, the High Court cannot compel any public officer to disclose communications made to him in official confidence if the officer considers that the public interest would suffer by the disclosure. By section 162, the High Court cannot inspect a document if it refers to matters of State. But these provisions do not constitute an invasion of the High Court 's jurisdiction under Article 226. The writ jurisdiction of the High Court under that Article has to be exercised consistently with the laws made by competent legislatures within the area of their legislative power. I do not think that it is open to any High Court to say that the law may be otherwise valid but since it interferes with the High Court 's power to undertake the fullest enquiry into the matter before it. the law becomes unconstitutional. The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction. These are not for that reason unconstitutional qua the High Court 's jurisdiction under Article 226. Counsel for the respondents cited the parallel of section 14 of the which was struck down by this Court in A. K. Gupalan vs The State(1). Sub section (1) of that section provided, in substance,that no court shall, except for certain purposes. allow any statement to be made or any evidence to be given before it of the substance of any communication of the grounds on which a detention order was made against any person or of any representation made by him. Sub section (2) of section 14 made it an offence for (1) ; 411 any person to disclose or publish without the previous authorization of the Government any contents or matter purporting to be contents of any communication or recpresentation referred to in sub section (1). The right to enforce Article 22 of the Constitution was not suspended by any Presidential order when Gopalan 's ease was decided and therefore the court was entitled to find whether that Article was complied with. The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the inversion of his rights. Since in Gopalan 's case, it was open to the detenu to contend that the grounds of detention did not bear any connection with the order of detention, the Court was entitled to examine the grounds in order to determine whether the plea of the detenu was well founded. As section 14 debarred the court from examining the material which it was entitled under the Constitution to examine, it was declared ultra vires. (See pages 130 131, 217 218, 244, 285 and 333). In the instant ease the Presidential order deprives the respondents of their very locus standi and therefore section 16A(9) cannot be said to shut out an inquiry which is other wise within the jurisdiction of the High Court to make. Reliance WAS also placed by the respondents on the decision of this Court in Mohd. Maqbool Danmool vs State of Jammu and Kashmir( ') in which it was observed that the proviso to section 8, which was inserted by the Jammu and Kashmir Preventive Denotation (Amendment) Act, 1967, would have been unconstitutional if it had the same effect as section 14 of the was found to have in Gopalan 's case Damnoo 's case did not involve any question of privilege at all and in fact the relevant file was produced by the Government for the perusal of the High Court. The case also did not involve any question under Article 359(1) and the effect of a provision like section 16A(9) was not even hypothetically considered the Court. The view of the Bombay High Court that section 16A(9) may be read down so as to enable the court to examine the forbidden material is impossible to sustain. What use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclose to a party before it? The High Court, at the highest, could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict. G I am, therefore of the opinion that the challenge made by the respondents to the constitutionality of section 16A(9) must fail. Section 18 need not detain me long because it merely declares that no person who is detained under the Act shall have any right to personal liberty by virtue of natural law or common law, any. the 'natural law ' theory was discarded in Kesavanadun Bharati 's( ') (1) ; (1) [1973] Supp. section C. R. I. 412 case and likewise the common law theory was rejected in Makhan Singh 's case. The section only declares what was the true law prior to its enactment on June 25, 1975. The amendment of section 18 by the substitution of the words "in respect of whom all order is made on purported to be made under section 3" in place of the words 'detained under this Act" does not render the section open to a challenge on the ground of excessive delegation. The words "purported to be made" have been inserted in order to obviate the challenge that the detention is not in strict conformity with the MISA. Such a challenge is even otherwsie barred under the Presidential order. The object of the added provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen to be S in less than absolute conformity with the MISA. The executive is bound at all times to obey the mandate of the legislative but the Presidential order bars during a certain period the right to complain of any deviation from that rule. In numerous cases detenus have been released by this Court and by the High Courts on. the ground that there is no nexus between the grounds of detention and the object of the law under which the order of detention is made or that the acts complained of are too distant in point of time to raise an apprehension that the past con duct of the detenu is likely to project itself into the future or that the ground are too vague for the formation even of subjective satisfaction or that irrelevant and extraneous considerations have materially influenced the mind of the detaining authority. On some few occasions detention orders have also been set aside on the ground of factual mala fides. An unconditional Presidential order obliterates this jurisprudence by striking at the very root of the matter. locus of the detenu is its chose in target and it deprives him of his legal capacity to move any court for the vindication of his rights to the extant that they arc mentioned in the Presidential order. In their passion for personal liberty courts had evolved, carefully and laborously, a sort of "detention jurisprudence" over the years with the sale object of ensuring that the executive does not transcend its duty under the law. In legal theory that obligation still remains but its violation will now furnish no cause of action. at least to an extent. and to a significant extent. Amidst the clash of arms and conflict of ideologies, laws will now be silent but in times when the Nation is believed to be going through great strains and stresses, it may be necessary to entrust sweeping powers to the State. And it is no smail comfort that those powers are granted with the consent of the Parliament. The people of this country are entitled to expect when they go to the ballot box that their chosen representatives will not willingly suffer an erosion of the rights of the people. And the Parliament. while arming the executive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter checks which the law provides and above all 413 the lofty faith in democracy which ushered the birth of the Nation will, h l hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom. I find it not so easy to summarize my conclusions in simple, straightforward sentences. The many sided issues arising before us do not admit of a monosyllabic answer 'yes ', or 'no '. All the same these broadly are my conclusions: (1) The order issued by the President on June 27, 1975 under Article 359(1) of the Constitution does not suspend the fundamental principle that all executive action must have the authority of law to support it. Nor does the Presidential order give to the executive a clatter to disobey the laws made by the Parliament, which is the supreme law making authority. (2) The aforesaid Presidential order, however, deprives a person of his locus standi to move any court, be it the Supreme Court or the High Court, for the enforcement of his fundamental rights which are mentioned in the order. Such deprivation or suspension ensures during the period that the Proclamation of Emergency is in force or for such shorter period as may be specified in the order. (3) The dominant purpose of the petitions filed by the respondents in the High Courts is to obtain an order of release from detention by enforcing the right to personal liberty. The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed. The former plea is barred by reason of the Presidential order. The latter plea is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for. (4) The Presidential order dated June 27, 1975 baring investigation or inquiry into the question whether the order of detention is vitiated by mala fides factual or legal, or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material. (5) Whether or not Article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under Article 226 of the Constitution for the release of a person detained under the MISA, no relief by way of releasing the detenu can be granted because no person has the legal capacity to move any court to ask for such 414 relief. The Presidential order takes away such legal capacity by including Article 21 within it. the source of the right to personal liberty is immaterial because the words" "conferred by" which occur i Article 359(1) and in the Presidential order are not words of limitation. (6) The Presidential order does not bring about any amendment of Article 226 and is not open to challenge on that ground. (7) The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court, nor does it bar the execution of decrees passed against the Government, nor does it bar the grant of relief other or less than the release of the detenu from detention. (8) Section 16A(9) of the MISA is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of the High Court under Article 226. There is no warrant for reading down that section so as to allow the court to inspect the relevant files to the exclusion of all other parties. (9) Section 18 of the MISA does not suffer from the vice of excessive delegation and is a valid piece of legislation. And so we go back to The Zamora(1) ', Rex vs Holliday(2), Liversidge vs Anderson(3), Greene vs Secretary of State( '). A jurisdiction of suspicion is not a forum for objectivity. "These who are responsible for national security must be the sole judges of what the national security requires"; "However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement". As a result, perhaps the only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of the order the stated purpose of detention is within the terms of law. These questions, in almost all cases, will have an obvious answer. Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond bright, diamond hard hope that such things will never come to pass. (1) (2) ; , 271. (3) [1942] A. 206. (4) [l942] A. 284. 415 BHAGWATI, J. These appeals by special leave raise issues of gravest constitutional importance. They affect personal liberty which is one of our most cherished freedoms and impinge on the rule of law which is one of the great principles that lies at the core of constitutional democracy and gives content to it. Does a Presidential order under Article 359, clause (1) specifying Article 21 silence the mandate of the law and take away personal liberty by making it unenforceable in a court of law, or does judicial scrutiny of legality of detention stand untouched and unimpaired, so that, despite such Presidential order, a person who is illegally detained can seek his freedom by invoking the judicial Process. That is the anodizing question before the Court. The facts giving rise to these appeals have been fully set out in the judgment of my Lord the Chief Justice and it is not necessary for me to reiterate them as nothing turns on the facts. None of the writ petitions out of which these appeals arise has in fact been finally disposed of on merits. Barring the writ petitions before the Rajasthan High Court and the Nagpur Bench of the Bombay High Court, where one additional question has been considered, the only question that has been decided in these writ petitions is as to their maintainability. in view of the Presidential order dated 27th June, 1975 issued under Article 359, clause (1) of the Constitution. The High Courts of Allahabad, Madhya Pradesh, Andhra Pradesh, Delhi, Karnataka and Rajasthan and the Nagpur Bench of the Bombay High Court before whom these writ petitions were heard on the preliminary issue as to maintainability, took the view that the Presidential order, dated 27th June, 1975, did not wholly bar the maintainability of these petitions, but left open certain grounds of challenge which could yet be urged against the validity of the order of detention. These different High Courts were not agreed upon what were the grounds of challenge which were thus available to an applicant despite the Presidential order dated 27th June, 1975. There were differences of opinion amongst them, but for the purpose of the present appeals, it is not necessary to refer to those differences as they are not material. The Rajasthan High Court and the Nagpur Bench of the Bombay High Court also considered the interpretation and validity of section 16A, sub section (9) of the and while the Rajasthan High Court accepted the interpretation of that sub section canvassed on behalf of the Government and upheld its validity even on that interpretation, the Nagpur Bench of the Bombay High Court held the sub section to be valid by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on which the order of detention was based. Since in the view of these High Courts, the writ petitions filed by the detenus were maintainable, though on certain limited grounds of challenge, each of the writ petitions was directed to be set down for hearing on merits. There upon each of the aggrieved State Governments obtained special leave to appeal against the decision of the concerned High Court and that is how the present appeals have come before this Court. 416 Two questions arise for consideration in these appeals. They have been formulated by the learned Attorney General appearing on behalf of the Union of India in the following terms: (1) Whether, in view of the Presidential order dated June 27, 1975 under clause (1) of Article 359, any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under MISA on the ground that the order of detention or the continued detention is for any reason, not under or in compliance With MISA is maintainable ? (2) If such a petition is maintainable, what is the scope or extent of judicial scrutiny, particularly, in view of tile said Presidential order mentioning, inter alia, clause (5) of Article 22 and also in view of sub section (9) of section 16A of MISA? So far as the second question is concerned, it may be pointed out straightaway that the learned Attorney General with his usual candor conceded that if his first contention in regard to maintainability of a writ petition for habeas corpus is not accepted and the writ petition is held maintainable, the area of judicial scrutiny would remain the same as laid down in the decisions of this Court, subject only to the qualification that the grounds, information and materials, on which the order of detention is based, would not be available either to the detenu or to the High Court by reason of suspension of enforcement of the right conferred by clause (S) of Article 22 and the enactment of section 16A, sub section (9) of the . The only point which would, therefore, require to be considered under the second question is in regard to the interpretation and validity of sub section (9) of section 16A. Before we proceed to consider the first question which turns on the true interpretation and effect of the Presidential order dated 27th June, 1975, it would help to place the problem in its proper perspective if we first examine what is an emergency and how institutions and procedures different from those in normal times are necessary to combat it. It would be both profitable and necessary to embark upon this inquiry, because Article 359, clause (1) under which the Presidential order dated 27th June, 1975 has been issued is a consequential provision which comes into operation when a Proclamation of emergency is issued by the President under Article 352. It is evident that a national emergency creates problems for a democracy no less than for other governments. A totalitarian Government may handle such a situation without embarrassment. But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy. The question arises and that was a question posed by Abraham Lincoln on July 4, 1861: can a democ 417 ratic constitutional government beset by a national emergency be strong enough to maintain its own existence without at the same time being so strong as to subvert the liberties of the people it has been instituted to defend. This question is answered affirmatively by the incontestable facts of history if we have regard to the experience of emergency governments of three large modern democracies the United States, Great Britain and France. There is no reason why the Indian experience should be otherwise, if the basic norms of constitutionalism in assumption of emergency powers are observed. What are these basic norms in a constitutional democracy and what is the purpose behind assumption of emergency powers are matters which I shall presently discuss. But before I do so, let me first consider what are the different types of emergency which may plague the government of a country. There are three types of crisis in the life of a democratic nation, three well defined threats to its existence both as nation and democracy. The first of these is war, particularly a war to repel invasion when "a State must convert its peace time political and social order into a war time fighting machine and over match the skill and efficiency of the enemy". There may be actual war or threat of war or preparations to meet imminent occurrence of war, all of which may create a crisis situation of the gravest order. The necessity of concentration of greater powers in the Government and of contraction of the normal political and social liberties cannot be disputed in such a case, particularly when the people are faced with a grim horror of national enslavement. The second crisis is threat or presence of internal subversion calculated to disrupt the life of the country and jeopardize the existing of the constitutional government. Such activity may stem from a variety of causes. Perhaps the most common is disloyalty to the existing form of government, often accompanied by a desire to effect changes by vio1ent means. Another cause may be strong disaffection with certain government policies. Communal demands for States within the Federal on linguistic or religious lines may fall within this category. Or the presence of powerful lawless elements with perhaps no political motivation, but for various reasons beyond the scope of ordinary machinery of the law, may give rise to this problem. The third crisis, one recognised particularly in modern times as sanctioning emergency action by constitutional government, is break down or potential break down of the economy. It must be recognised that an economic crisis is as direct a threat to a nation 's continuing constitutional existence as a war or internal subversion. These are three kinds of emergencies which may ordinarily imperil the existence of a constitutional democracy. Now, it is obvious that the complex system of government of a constitutional democratic State is essentially designed to function under normal peaceful conditions and is often unequal to the exigencies of a national crisis. When there is an emergency arising out of a national 29 833 Sup CI/76 418 crisis, a constitutional democratic government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions. This alteration invariably involves government of a stronger character. The government has to assume larger power in order to meet the crisis situation and that means that the people would have fewer rights. There can be no doubt that crisis government means strong and arbitrary government and as pointed out by Cecil Carr in his article on "Crisis Legislation in Great Britain" published during the Second World War "in the eternal dispute between Government and liberty, crisis means more government and less library. " In fact Scrutton, L.J. never a fulsome admirer of government departments, made the classic remark in his judgment in Ronnfeldt vs Phillips( ') that war cannot be carried on according to the principles of Magna Carta and there must be same modification of the liberty of the subject in the interests of the State. The maxim salus populi suprema lex esto, that is publicsafety is the highest law of all, must prevail in times of crisis and the people must submit to temporary abdication of their constitutional liberties in order to enable the government to combat the crisis situation which might otherwise destroy the continued existence of the nation. While dealing with the emergency powers which may be assumed by a constitutional democracy to deal effectively with a national crisis, it is necessary to refer to the celebrated writ of habeas corpus. It is the most renowned contribution of the English common law to the protection of human liberty. It is one of the most ancient writs known to the Common Law of England. It is a writ of immemorial antiquity "throwing its roots deep into the genius" of the Common Law. It is not necessary to trace the early history of this writ which is to be found in the decision of this Court in Kanu Sanyal vs District Magistrate, Darjeeling & ors (2) Suffice it to state that by the 17th Century this writ had assumed great constitutional importance as a device for impugning the validity of arbitrary imprisonment by the executive and by invoking it, a person unlawfully imprisoned could secure his release. As pointed out by Holdsworth in Vol. 1 of his "History of English Law", "its position as the most efficient protector of the liberty of the subject was unquestioned after the great Rebellion". It was for this reason that men began to assign as its direct ancestor the clauses of the Magna Carta which prohibited imprisonment without due process of law. This may not be strictly accurate, but there can be no doubt that, far more effective than any other remedy, this writ helped to vindicate the right of freedom guaranteed by the famous words of the Magna Carta. The decision in Darnel 's case(3) was a set back in the struggle for liberty since it eroded to some extent the effectiveness of the writ by taking the view that a return that the arrest was "by the special command of the King" was a good and sufficient return to the writ, which meant that a lawful cause of imprisonment was shown. But the Petition of Right. 1627 overruled this decision by declaring such a case of imprisonment to (1) 35 Times Law Reports 46. (2) ; (3) 419 be unlawful. In the same way, it was enacted in the Habeas Corpus A Act, 1640 abolishing the Star Chamber that any person committed or imprisoned by order of the Star Chamber or similar bodies or by the command of the King or of the Council should have his habeas corpus. There were also various other defects which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as an instrument of securing the liberty of the subject unlawfully detained, reforms were introduced by the Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 18 1 6 was enacted by which the benefit of the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ. The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury, L.C., in Cox vs Hakes,(i) it has throughout "been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege . Now, in the United States of America, the right to this important writ of habeas corpus by means of which the liberty of a citizen is protected against arbitrary arrest, is not expressly declared in the Constitution, but it is recognised in Article I, Placitum 9, clause (2) of the Constitution which declares that "The privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it". Cooley in his "General Principles of Constitutional Law in the U.S.A." points out: The privilege of the writ consists in this: that, when one complains that he is unlawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper court or magistrate for an examination into the cause of his detention, and shall be discharged if the detention is found to be unwarranted. The suspension of the privilege consists in taking away this right to an immediate hearing and discharge, and in authorising arrests and detentions without regular process of law. " The suspension of the privilege of the writ does not legalise what is done while it continues: it merely suspends for the time being the remedy of the writ. The decision of Chief Justice Taney in ex P. Merryman(2) contains the leading American discussion of the suspension of the writ of habeas corpus in a temporary emergency. In the spring of 1861. the eve of the American Civil War, President Lincoln was confronted by a state of open insurrection in the State of Maryland following the fall of Fort Sumter on April 15. Railroad communication to the northern United States had been severed by the Marylanders on April 20 and the Sixth Massachusetts Militia reached Washington only after fighting its way through the City of Baltimore. In these circumstances and under the increasing threat of secession, President Lincoln issued a Proclamation on April 27 authorising General Pinfield Scot to suspend H (1) [1890] 15 A. C.506. (2) 17 Fed. 144 (C. C. D. Md. 1861). 420 the writ of habeas corpus "at any point on or in the vicinity of the military line which is now, or shall be used between the City of Philadelphia and the City of Washington". Another Proclamation of July 2 extended this power to a similar area between Washington and New York. John Merryman who was a Marylander openly recruited a company of soldiers to serve in the Confederate Army and became their drill master and in consequence he was arrested by the army of Lincoln and held prisoner in Fort McHenry. He applied for a writ of habeas corpus and, despite the Presidential authorisation suspending the writ, the Supreme Court presided over by Chief Justice Taney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and the President cannot exercise it except as authorised by law. History tells us that President Lincoln declined to implement the order of the Supreme Court and this would have led to a major constitutional crisis, but the Congress hastened to resolve the controversy by enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it. It would, therefore, be seen that even in United States of America, where personal liberty is regarded as one of the most prized possessions of man, the Congress has the power to suspend the writ of habeas corpus and this power has been exercised in the past, though very sparingly. So also in Great Britain the writ of habeas corpus which, as May points out, "is unquestionably the first security of liberty" and which "protects the subject from unfounded suspicions, from aggressions of power" has been suspended, again and again, in periods of public danger or apprehension. Parliament, convinced of the exigencies of the situation, has on several occasions suspended, for the time being, the rights of individuals in the interests of the State. This of course has had the effect of arming the executive with arbitrary power of arrest by making it impossible for a person detained to secure his release even if his detention is illegal. It has resulted in great diminution in the interest of personal freedom, for, suspension of habeas corpus is verily, in substance and effect, suspension of the right of personal liberty granted in Magna Carta, But it has been justified on the ground that whatever be the temporary danger of placing such power in the hands of the Government, it is far less than the danger with which the constitution and the society are threatened, or to put it differently "when danger is imminent, the liberty of the subject must be sacrificed to the paramount interests of the State". Moreover, on each occasion when the writ of habeas corpus has been suspended, the suspension of the writ has invariably been followed by an Act of Indemnity "in order to protect officials concerned from the consequences of any incidental illegal acts which they might have committed under cover of suspension of the propogative writ". During the period of emergency, many illegalities might have been committed by the executive in order to deal with a crisis situation and all such illegalities have been retrospectively legalised by an Indemnity Act. I may now turn to consider the emergency provisions under our Constitution. Unlike many of the older constitutions, our Constitution speaks in detail on the subject of emergency in Part XVIII. That Part 421 consists of a fasciculus of Articles from Article 352 to Article 360. A Article 352 enacts that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect and such Proclamation is required to be laid before each House of Parliament and approved by resolutions of both Houses before the expiration of two months. It is not necessary that there should be actual occurrence of war or external aggression or internal disturbance in order to justify a Proclamation of Emergency. It is enough if there is imminent danger of any such crisis. It will be seen that this Article provides for emergencies of the first two types mentioned above. The third type of emergency threatening the financial stability of India or any part thereof is dealt with in Article 360 but we are not concerned with it and hence it is not necessary to consider the provisions of that Article. So far as the emergencies of the first two types are concerned, the constitutional implications of a declaration of emergency under Article 352 are much wider than in the United States or Great Britain. These are provided for in the Constitution itself. In the first place, Article 250 provides that while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List, which means that the federal structure based on separation of powers is put out of action for the time being. Secondly, Article 353 declares that during the time that Proclamation of Emergency is in force, the executive power of the Union of India shall extend to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised and this provision also derogates from the federal principle which forms the basis of the Constitution. If there is non compliance by any State with the directions given by the Union under Article 353, such non compliance may attract the provisions of Article 356 and 'President 's rule ' may be imposed under that Article and in such event. Parliament may, under Article 357, clause (1), confer on the President the power of the legislature of the ' State to make laws or to delegate such legislative power to any other authority. This not only contradicts the federal P principle, but also strikes at the root of representative form of Government. Then there are two Articles, Article 358 and Article 359 which set out certain important consequences of Proclamation of Emergency and they read as follows: "358. While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency. cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. "359. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to 422 move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. (1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate. except as respects things done or omitted to be done before the law so ceases to have effect. (2) An order made as aforesaid may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament. " It may be pointed out that clause (1A) did not form part of Article 359 when the Constitution was originally enacted but it was introduced with retrospective effect by the Constitution (Thirty eighth Amendment) Act, 1975. We are not directly concerned in these appeals with the interpretation of Article 358 and clause (1A) of Article 359, but in order to arrive at the proper meaning and effect of clause (1) of Article 359, it will be relevant and somewhat useful to compare and contrast the provisions of Article 358 and clause (1A) of Article 35 on the one hand and clause (1) of Article 359 on the other. It would be convenient at this stage to set out the various steps taken by the Government of India from time to time in exercise of the emergency powers conferred under Part XVIII of the Constitution. When hostilities broke out with Pakistan in the beginning of December 1971, the President issued a Proclamation of Emergency dated 3rd December, 1971 in exercise of the powers conferred under clause (1) of Article 352 declaring that "a grave emergency exists whereby the security of India is threatened by external aggression". This was followed by two orders, one dated 5th December, 1971 and the other dated 23rd December, 1974, issued by the President under clause (1) of Article 359. It is not necessary to reproduce the terms of these two Presidential orders since they were subsequently rescinded by a Presidential order dated 25th December, 1975 issued under clause (1) of Article 359. Whilst the first Proclamation of Emergency dated 3rd December, 1971 based on threat of external aggression continued in force, the President issued another Proclamation of Emergency dated 25th June, 1975 declaring that "a grave emergency exists whereby the security of India is threatened by internal disturbance". This Proclamation of Emergency was also issued in exercise of the powers confer red under Article 352, clause (1) and it was followed by a fresh Presi 423 dential order dated 27th June, 1975 under clause (1) of Article 359. A The President, by this order made under clause ( l ) of Article 359, declared that "the right of any person, (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force". The writ petitions out of which the present appeals arise were filed after the issue of this Presidential order and it was on the basis of this Presidential order that it was contended on behalf of the State Governments and the Union of India that the writ petitions were not maintainable, since, by moving the writ petitions, the detenus sought enforcement of the right of conferred by Article 21. This contention was substantially negatived by the High Courts and hence the present appeals were brought by the State Governments and the Union of India raising the same contention as to the maintainability of the writ petitions. It may be pointed out that whilst the present appeals were pending before this Court, the President issued another order dated 8th January, 1976 under clause (1) of Article 359 suspending the enforcement of the rights conferred by Article 19. This Presidential order is not material, but I have referred to it merely for the sake of completeness. Now the orders of detention challenged by the detenus in the different writ petitions were all expressed to be made in exercise of the powers conferred by section 3 of the . The detenus challenged them on various grounds, namely, the orders of detention were not in accordance with the provisions of the Act, they were not preceded by the requisite subjective satisfaction, which constitutes the foundation for the making of a valid order of detention, they were actuated by malice in law or malice in fact or they were outside the authority conferred by the Act. The substance of these grounds according to the Union of India and the State Governments, was that, by these orders of detention, the detenus, were deprived of their personal liberty otherwise than in accordance with the procedure established by law. This constituted infraction of the fundamental right conferred by Article 21 and the writ petitions of the detenus were, therefore, clearly proceedings for enforcement of that fundamental right. But by reason of the Presidential order dated 27th June, 1975, the right to move any court for enforcement of the fundamental right conferred by Article 21 was suspended during the period when the Proclamations of Emergency dated 3rd December, 1971 and 25th June, 1975 were in force and, therefore, the detenus had no locus standi to file the writ petitions and the writ petitions were barred. The answer to this contention given on behalf of the detenus was and here we are setting out only the broad general argument that Article 21 merely defines an area of free action and does not confer any right and hence it is outside the scope and ambit of Article 359, clause ( I ) and consequently outside the Presidential order itself. It was also urged on behalf of the detenus that it is a basic principle of the rule of 424 law that no member of the executive can interfere with the liberty of a person except in accordance with law. The principle of the rule of law was recognised and declared by the Judicial Committee of the Privy Council in Eshugbayi Eleko vs Officer Administering the Government of Nigeria(l) and it was uniformly administered by courts in India as the law of the land prior to the coming into force of the Constitution. It was consequently law in for in the territory of India immediately before the commencement of the Constitution and by reason of Article 372, it continued in force ever after the coming into force of the Constitution and since then it has been repeatedly recognised and adopted by this Court as part of Indian jurisprudence in several decided cases. Moreover, apart from being continued under Article 372 as law in force, this principle of the rule of law stems from the constitutional scheme itself which is based on the doctrine of distribution of powers amongst different bodies created by the Constitution. Under the constitutional scheme the executive is a limited executive and it is bound to act in accordance with law and not go against it. This obligation of the executive not to act to the detriment of a person without the authority of law can be enforced under Article 226 by issue of a writ "for any other purpose". When a detenu files a petition under Article 226 challenging the validity of the order of detention on the ground that it is not in accordance with the Act or is outside the authority conferred by the Act, he seeks to enforce this obligation against the State Government and the suspension of enforcement of the fundamental right under Article 21 does not affect the maintainability of his writ petition. The detenus also contended that in any event the right to personal liberty was a statutory right and the suspension of the fundamental right conferred by article 21 did not carry with it suspension of the enforcement of this statutory right. The Union of India and the State Governments rejoined to this contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was no common law or statutory right in a person not to be deprived of his personal liberty except in accordance with law, apart from that contained in Article 21 and therefore, the writ petitions filed by the detenus were in substance and effect petitions for enforcement of the right conferred by Article 21 and hence they were not maintainable. Before we proceed to consider these contentions which have been advanced before us, it is necessary to remind ourselves that the emergency provisions in Part XVIII of the Constitution make no distinction whether the emergency is on account of threat to the security of India by war or external aggression or on account of threat to the security of India by internal disturbance. The same provisions are applicable alike in both situations of emergency, irrespective of the reason for which emergency, has been declared. The legal consequences are the same and, therefore, whatever interpretation we place on Article 359, clause (1) in the present case which relates to declaration of emergency on account of internal disturbance would apply equally where the emergency is declared on account of war or external aggression by a hostile power. If we take the view that the Presidential order under Article 359, clause (1) suspending enforcement of (1) ; 425 Article 21 does not bar the remedy of a detained person to seek his release on the ground that his detention is illegal, it would be open to a detained person to challenge the legality of his detention even when there is emergency on account of war or external aggression, because, barring Article 359, there is no other provision in the Constitution which can even remotely be suggested as suspending or taking away the right to move the Court in cases of illegal detention. The consequence would be that even in a perilous situation when the nation is engaged in mortal combat with an enemy, the courts would be free to examine the legality of detention and even if a detention has been made for efficient prosecution of the war or protecting the nation against enemy activities it would be liable to be struck down by the courts if some procedural safeguard has been violated though it may be bona fide and through inadvertence. This would imperil national security and the Government of the day would be helpless to prevent it. The question is: whether such is the interpretation of Article 359, clause (1). Of course, if that is the only possible interpretation, we must give effect to it regardless of the consequence, leaving it to the constituent authority to amend the Constitution, if it so thinks fit. But we may ask ourselves: could the Constitution makers have intended that even in times of war or external aggression, there should be no power in the President, as the head of the Nation, to bar judicial scrutiny into legality of detention. It may be pointed out that even in the United States of America, the President has power under Article I Placitum 9, clause (2) of the United States Constitution to suspend the privilege of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it". The British Parliament has also on several occasions in the past suspended the writ of habeas corpus by legislative enactment, though in limited classes of cases. The Constitution makers were obviously aware that even in these countries which are essentially democratic in character and where the concept of constitutional government has had its finest flowering, the power to exclude judicial review of legality of detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the State and they must have realised that this was a necessary power in times of national peril occasioned by war or external aggression. Could the Constitution makers have intended to omit to provide for conferment of this power on the head of the State in our Constitution ? We must also disabuse our mind of any notion that the emergency declared by the Proclamation dated 25th June, 1975 is not genuine, or to borrow an adjective used by one of the lawyers appearing on behalf of the interveners, is 'phoney '. This emergency has been declared by the President in exercise of the powers conferred on him under Article 352, clause (1) and the validity of the Proclamation dated 25th June, 1975 declaring this emergency has not been assailed before US. Mr. Shanti Bhushan and the other learned counsel appearing on behalf of the detenus in fact conceded before us that, for the purpose of the present appeals, we may proceed on the assumption that the declaration of emergency under the Proclamation dated 25th June, 1975 is valid. But if this emergency is taken as valid, we must equally presume that 426 it is genuine and give full effect to it, without any hesitation or reservation. With these prefatory observations I will now turn to examine clause (1) of article 359 under which the Presidential order has been issued. The language of this clause is clear and explicit and does not present any difficulty of construction. It says that where a Proclamation of Emergency is in operation, the President may by order suspend the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. Any or all of the rights conferred by Part III can find a place in the Presidential order. Whilst the Presidential order is in force, no one can move any court for the enforcement of any of the specified fundamental rights. I shall presently discuss whether Article 21 can be said to confer any right, but assuming it does and, as will be evident shortly, that is my conclusion the right to move any court for the enforcement of the fundamental right guaranteed by Article 21 may be suspended by specifying it in the Presidential order. When that is done, no one can move any court, and any court would mean any court of competent jurisdiction, including the High Courts and the Supreme Court., for enforcement of the right conferred by Article 21. The words "the right to move any court for the enforcement" are wide enough "to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified fundamental rights". Vide Makhan Singh vs State of Punjab(1). Therefore, there can be no doubt that in view of the Presidential order which mentions Article 21, the detenus would have no locus standi to maintain their writ petitions, if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21. That should logically take me straight to a consideration of the question as to what is the scope and content of the right conferred by article 21, for without defining it, it would not be possible to determine whether the right sought to be enforced by the detenus in their writ petitions is the right guaranteed under Article 21 or any other distinct right. But before I examine this question, it would be convenient first to deal with clause (1A) of Article 359 and ascertain its meaning and effect. Clause (1A) of article 359 did not find a place in the Constitution when it was originally enacted, but it was inserted with retrospective effect by the Constitution (Thirty eighth) Amendment Act, 1975. It provides that while an order made under cl. (1) of Article 359 mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in that Part, be competent to make or to take. It will be noticed that the language of cl. (1A) of article 359 is in the same terms as that of Article 358 and the decisions interpreting Article 358 would, therefore, afford considerable guidance in the interpretation of cl. (1A) of article 359. But before I (1) [1964] 4 section C. R. 797. 427 turn to those decisions, let me try to arrive at the proper meaning of that clause on a plain interpretation of its language. In the first place, it is clear that clause (1A) of article 359 is prospective in its operation, for it says that, while a Presidential order is in operation, nothing in the Articles mentioned in the Presidential order shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III, be competent to make or to take. This clause does not operate to validate a legislative provision or executive action which was invalid because of the constitutional inhibition before the Proclamation of Emergency. Secondly, it may be noted that the fundamental rights operate as restrictions on the power of the State, which includes the executive as well as the legislature. When a Presidential order is issued under article 359, clause (1), the fundamental right mentioned in the Presidential order is suspended, so that the restriction on the power of the executive or the legislature imposed by the fundamental right is lifted while the Presidential order is in operation and the executive or the legislature is free to make any law or to take any action which it would, but for the provisions contained in Part III, be competent to make or to take. The words "but for the provisions contained in that Part", that is, but for the fundamental rights, means "if the fundamental rights were not there". The question which has, therefore, to be asked is: if the fundamental rights were not there in the Constitution, would the executive or the legislature be competent to make the impugned law or to take the impugned executive action '? If it could, it would not be restricted from doing so by reason of the particular fundamental right mentioned in the presidential order. The Presidential order would, therefore, have the effect of enlarging the power of the executive of the legislature by freeing it from the restriction imposed by the fundamental right mentioned in the Presidential order, but it would not enable the legislature or the executive to make any law or to take any executive action which it was not otherwise competent to make or to take. Now it is clear that, if the fundamental rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even if the Presidential order mentions article 21, clause (1A) of Article 359 would not enable the executive to deprive a person of his personal liberty without sanction of law and except in conformity with or in accordance with law. If an order of detention is made by the executive without the authority or law, it would be invalid and its invalidity would not be cured by clause (1A) of Article 359, because that clause does not protect executive action taken without lawful authority. An unlawful order of detention would not be protected from challenge under Article 21 by reason of clause (1A) of Article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of Article 21, except in so far as his right to move the court for that purpose may be held to have been taken away by clause (1) of Article 359. This interpretation of clause (1A) of Article 359 is clearly supported by the decision of this Court in State of Madhya Pradesh vs 428 Thakur Bharat Singh(l) and the subsequent decisions following it, which relate to the interpretation of the similarly worded Article 358. What happened in Bharat Singh 's case (supra) was that whilst the Proclamation of Emergency dated October 20, 1962 was in operation, the State Government made an order under sub section (1) of section 3 of the Madhya Pradesh Public Security Act, 1959 directing that Bharat Singh shall not be in any place in Raipur District and shall immediately proceed to and reside in Jhabua. Bharat Singh challenged the validity of the order inter alia on the ground that sub section (1) of section 3 of the Act infringed the fundamental rights guaranteed under clauses (d) and (e) of Article 19(1). The State Government sought to meet the challenge by pleading the bar of Article 358. But this Court held that Article 358 had no application because sub section (1) of section 3 of the Act which was impugned in the petition was a pre emergency legislation. This Court, speaking through Shah, J. observed: "Article 358 which suspends the provisions of article 19 during an emergency declared by the President under article 352 is in terms prospective: after the proclamation of emergency nothing in article 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take. Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency." This Court accordingly proceeded to consider the validity of section 3, sub section (1) of the Act and held that clause (b) of that sub section was unconstitutional as it infringed the fundamental rights under clauses (d) and (e) of article 19(1) and if it was void before the proclamation of Emergency, "it was not revived by the Proclamation". But on this view, another contention was put forward on behalf of the State Government and that was that Article 358 protects not only legislative but also executive action taken after the Proclamation of Emergency and, therefore, executive action taken by the State would not be liable to be challenged on the ground that it infringes the fundamental rights under article 19, and consequently, the order of the State Government, though made under void law was protected against challenge under article 19. This contention was also rejected by the Court in the following words: "In our judgment, the argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have authority of law to support it, and the terms of article 358 do not detract from that rule. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others . it merely provides that so long as the proclamation of emer (1) ; 429 gency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of article 19 were operative would have been invalid. The view taken by the Court was that it is only where executive action ii taken in pursuance of lawful authority that it is immune from challenge under article 19 and in such a case even if it conflicts with the fundamental rights guaranteed under that Article, it would be valid But where executive action is taken without lawful authority, as for example, where it is taken without the authority of any law at all or in pursuance of a law which is void, it is not protected from challenge under article 19 by Article 358 and it would be void to the extent it violates article 19. The same view was taken by this Court in District Collector of Hyderabad vs M/s Ibrahim Co.(1) where this Court said, without referring expressly to the decision in Bharat Singh 's case (supra) that i ' the executive order immune from attack is only that order which the State was competent, but for the provisions contained in Art 19, to make", and that "executive action of the State Government, which is otherwise invalid, is not immune from attack merely because the Proclamation of Emergency is in operation when it is taken". The reference here was to immunity from attack under article 19 and it was held that executive action which was contrary to law and hence invalid was not protected from attack under article 19 by reason of article 358. So also in Bennett Coleman & Co. vs Union of India(2), this Court referred to the decisions in Bharat Singh ' case (supra) and Ibrahim 's case (supra) and observed: "Executive action which is unconstitutional is immune during Proclamation of Emergency. During the Proclamation of Emergency article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting fundamental rights in article 19 without any legislative authority or any purported exercise of power conferred by any pre emergency law which was invalid when enacted". This Court also said to the same effect in Shree Meenakshi Mills Ltd. vs Union of India(3): " if it can be shown that the executive action taken during the emergency has no authority of a valid law, its constitutionality can be challenged". These observations clearly show that where executive action is taken without any legislative authority or in pursuance of a law which is void it would not be protected by article 358 from challenge under article 19 and it would be unconstitutional to the extent to which it conflicts with that Article. If this be the interpretation of article 358 as laid down in the decisions of this Court, a fortiori a like interpretation must be placed on clause (1A) of article 359, as both are closely similar in form as well as language. It must, therefore, be held that even though a Presidential order issued under clause (1) of article 359 mentions article 21, where it is found that a detention has not been made in pursuance of lawful (1) (2) [19731 2 section C. R. 757 (3) [19741 2 section C. R. 398. 430 authority or in other words, the detention is without the authority of law, whether by reason or there being no law at all or by reason of the law under which the detention is made being void, clause ( 1A) of article 359 would not protect it from challenge under article 21 and it would be in conflict with that Article. The only question then would be whether the detenu would be entitled to challenge the validity of tile detention as being in breach of article 21, in view of clause (1) of article 353 read with the Presidential order mentioning article 21. Now, at the outset, a contention of a preliminary nature was advanced by Mr. Shanti Bhushan, learned Advocate appearing on behalf of some of the detenus, that clause (1) of article 359 can have no operation in cases where a detenu seeks to enforce his right of personal liberty by challenging the legality of his detention. Mr. Shanti Bhushan contended, and in this contention he was strongly supported by Mr. Jethmalani, that personal liberty is not a conglomeration of positive rights but is merely a negative concept denoting an area of free action to the extent to which law does not curtail it or authorise its curtailment and such a negative right cannot by its very nature be the subject of conferment under article 21. The argument of counsel based on this contention was that when article 359 clause (1) speaks of suspension of "the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order", it cannot include reference to the right of personal liberty in article 21, because it cannot be said of such a right that it is conferred by article 21. It was urged that article 21 cannot therefore appropriately find a place in a Presidential order under clause (l) of article 359 and even if it is erroneously mentioned there; it can have no legal sequitur and cannot give rise to the consequences set out in clause (1) of article 359. This argument was sought to be supported by reference to two well known text books on jurisprudence, one by Salmond and the other by Holland and the Declaration of the Rights of Man and the Citizen adopted by the French National Assembly was also relied upon for this purpose. There is, however, no merit in this argument. The words 'rights conferred by Part III ' cannot be read in isolation, `nor can they be construed by reference to theoretical or doctrinaire considerations. They must be read in the context of the provisions enacted in Part III in order to determine what are the rights conferred by the provisions in that Part. Part III is headed ' 'Fundamental Rights" and it deals with fundamental rights under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. articles 19 to 22 occur under the heading "Right to Freedom" and what is enacted in article 21 is a right, namely, the right to life and personal liberty. It is true that article 21 is couched in negative language, but it is axiomatic that to confer a right it is not necessary to use any particular form of language. It is not uncommon in legislative practice to use negative language for conferring a right. That is often done for lending greater emphasis and strength to the legislative enactment. One instance may be found in section 298, sub section (1) of the Government of India Act, 1935 which provided that no subject of His Majesty domiciled in India shall on 431 grounds only of religion, place of birth descent, colour or any of them A be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India. Though this provision was couched in negative language, the Judicial Committee of the Privy Council in Punjab Province vs Daulat Singh(1) construed it as conferring a right on every subject of His Majesty, domiciled in India. B Similarly, article 14 also employs negative language and yet it was construed to confer a fundamental right on every person within the territory of India, section R. Das, C.J., pointed out in Basheshar Nath vs The Commissioner of Income Tax, Delhi & Rajasthan(2) that it is clear from the language of article 14 that "The command of that Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy." (emphasis supplied). Article 31, clause (1) is also couched in negative language: it is almost in the same form as Article 21. Speaking about Article 31, section R. Das, J. Observed in State of Bihar vs Maharajadhiraj Kameshwar Singh of Dharbhanga & ors.(3). "It confers a fundamental right in so far as it protects private property from State action. The only limitation put upon the State action is the requirement that the authority of law is prerequisite for the exercise of its power to deprive a person of his property. This confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right. It is to emphasise this immunity from State action as a fundamental right (that the clause has been worded in negative language . " (emphasis supplied) If Article 31 (1), by giving a limited immunity from State action, confers a fundamental right, it should follow equally on a parity of reasoning that Article 21 also does so. In fact, this Court pointed out in so many terms in P. D. Shamdasani vs Central Bank of India Ltd.(4): that clause (1) of article 31 "is a declaration of fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty". Then again in R. C. Cooper v, Union of India(5) this Court in a majority judgment to which ten out of eleven judges were parties said: " it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: article 29(1), 30(1), 26, 25 and 32, in others to ensure protection of individual rights they take specific forms of restrictions on State action legislative or executive articles 14, 15, 16, 20, 21, 22(1), 27 and 28; The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through (1) 73 Indian Appeals 59. (2) [1959] Supp. (I) section C. R. 529. (3) at p. 988. (4) ; (5) 119701 3 section C. R. 530. 432 them; they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part Ill of the Constitution weaves a pattern of guarantees on the texture of basic human rights. " This statement of the law establishes clearly and without doubts that Article 21 confers the fundamental right of personal liberty. Let us, for a moment, consider what would be the consequences if article 21 were construed as not conferring a right to personal liberty. Then there would be no fundamental right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of article 21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32, for that Article is available only for enforcement of the rights conferred by Part III. That would be a startling consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention. Let it not be for gotten that the Supreme Court has exercised this jurisdiction in a large number of cases over the last 25 years and set many detenus at liberty where it found that they were illegally detained. All this exercise of jurisdiction in the past would be rendered illegal and void. Ever since the commencement of the Constitution, this Court has always regarded Article 21 as conferring the fundamental right of personal liberty which can be enforced in this Court by a petition under Article 32 and there is no justification for departing from this well settled constructional position. What then is the scope and ambit of this fundamental right conferred by Article 21 ? The first question that arises in this connection is: what is the meaning and content of the word 'personal liberty ' in this Article ? This question came up for consideration before a Bench of six judges of this Court in Kharak Singh vs State of U.P. & Ors.(1). The majority judges took the view "that 'personal liberty ' is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties ' of man other than those dealt with in the several of clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty ' in Article 21 takes in and comprises the residue". The minority judges, however disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty ' is a comprehensive one and the right to move freely is an attribute of that freedom personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty ' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights. though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty have many attributes and some of them are found in Article 19. If a person 's fundamental right under Article 21 is infringed, the State can rely upon a law (1) [1964] 1 section C. R. 332. 433 to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. " There can be no doubt that in view of the decision of this Court in R. C. Cooper 's case (supra) the minority view must be regarded as correct and the majority view must be held to have been overruled. No attribute of personal liberty can be regarded as having been carved out of Article 21. That Article protects all attributes of personal liberty against executive action which is not supported by law. lt is not necessary for the purpose of the present appeals to decide what those attributes are or to identify or define them. It is enough to say that when a person is detained, there is deprivation of personal liberty within the meaning of Article 21. Now Article 21 gives protection against deprivation of personal liberty but what is the nature and extent of this protection ? In the first place, it may be noted that this protection is only against State action and not against private individuals. Vide P. D. Shamdasani vs Central Bank of India Ltd. (supra) and Smt. Vidya Verma vs Dr. Shiv Narain(l). Secondly, it is clear from the language of article 21 that the protection it secures is a limited one. It says and I am quoting here only that part of the Article which relates to personal liberty, that no one shall be deprived of his personal liberty except by the procedure prescribed by law. The meaning of the word 'law ' as used in this Article came to be considered by this Court in A. K. Gopalan vs State of Madras(2) and it was construed to mean 'enacted law ' or 'State law '. Kania, C.J., observed: "It is obvious that law must mean enacted law", and to the same effect spoke Patanjali Sastri, J., when he said: "In my opinion 'law ' in article 21 means 'positive or State made law ' ". So also Mukherjee, J., said that his conclusion was that "in article 21 the word 'law ' has been used in the sense of State made law",,and Das J. too expressed the view that law in article 21 must mean State made law. The only safeguard enacted by Article 21, therefore, is that a person cannot be deprived of his personal liberty except according to procedure prescribed by 'State made law. If a law is made by the State prescribing the procedure for depriving a person of his personal liberty and deprivation is effected strictly in accordance with such procedure, the terms of Article 21 would be satisfied and there would be no infringement or the right guaranteed under that Article. Now, based on the phraseology "except according to procedure established by law" in Article 21, an argument was advanced on behalf of the detenus that it is only where procedure prescribed by the law as not been followed in making the order of detention that Article 21 is attracted and the right conferred by that Article is breached and not where an order of detention is made without there being any law at all or where there is a law, outside the authority conferred by it. It was urged that where an order of detention is challenged as mala (1) ; (2) ; 833 SCI/76 434 fide or as having been made without the requisite subjective satisfaction, the challenge would not be on the ground of breach of the procedure prescribed by the Act but it would be on the ground that the order of detention is outside the authority of the Act and such a challenge would not be covered by Article 21. This argument is, in my opinion, wholly unsustainable. It is clear on plain natural construction of its language that Article 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty, and secondly, such law must prescribe a procedure. The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law". When a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation. Article 21 thus provides both substantive as well as procedural safeguards. This was pointed out by Patanjali Sastri, J. in A. K. Gopalan vs State of Madras (supra) at page 195 of the Report where the learned Judge said: "If article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that article 21, presents an example of the fusion of procedural and substantive rights in the same provision the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation. " Mahajan, J. also pointed out in the same case at page 229 of the Report: Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation." section R. Das, J. too spoke in the same strain when he negatived the argument "that personal liberty as a substantive right is protected by Article 19(1) and article 21 gives only an additional protection by prescribing the procedure according to which that right may be taken away. " It would, therefore, be seen that both the safeguards of Article 21, substantive as well as procedural, have to be complied with in order that there should be no infraction of the right conferred by that Article. Where there is a law authorising deprivation of personal liberty, but a person is detained otherwise than in conformity with the procedure prescribed by such law, it would clearly constitute 435 violation of Article 21. And so also there would be breach of Article A 21, if there is no law authorising deprivation of personal liberty and yet a person is detained, for then the substantive safeguard provided in the Article would be violated. Therefore, when a detenu challenges an order of detention made against him on the ground that it is mala fide or is not preceded by the requisite subjective satisfaction, such challenge would fall within the terms of Article 21. B It is also necessary to point out two other ingredients of Article 21. The first is that there must not only be a law authorising deprivation of personal liberty, but there must also be a procedure prescribed by law, or in other words, law must prescribe a procedure. Vide observations of Fazal Ali, J. at page 169, Patanjali Sastri, J. at page 205, Mahajan, J. at pages 229 and 230 and section R. Das, J. at page 319 of the Report in A . K. Gopalan 's case ( supra) . Article 21, thus, operates not merely as a restriction on executive action against deprivation of personal liberty without authority of law, but it also enacts a check on the legislature by insisting that the law, which authorises deprivation, must establish a procedure. What the procedure should be is not laid down in this Article, but there must be some procedure and at the least, it must conform to the minimal requirements of Article 22. Secondly, 'law ' within the meaning of Article 21 must be a valid law and not only must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the fundamental rights enumerated in Part III. Vide Shambhu Nath Sarkar vs The State of West Bengal(1) and Khudiram Das vs The State of West Bengal & ors.(2). It was contended by Mr. Jethmalani on behalf of some of the detenus that when a Presidential order suspends enforcement of the right conferred by article 21, its effect is merely to suspend enforcement of the aforesaid two ingredients and, therefore, the only claims which a detenu is interdicted from enforcing, whilst the Presidential order is in operation, are: (1) that the law authorising deprivation does not prescribe a procedure, and (2) that it does not impose reasonable restrictions on the freedom guaranteed under article 19. This contention is plainly erroneous and does not need much argument to refute it. In the first place, the requirement that the law which authorises deprivation of personal liberty should not fall foul of Article 19, or for the matter of that, with any other fundamental right set out in Part III, is not a requirement of Article 21, but it is a requirement of article 13. Secondly, the effect of suspension of enforcement of Article 21 by the Presidential order is that no one can move any court for a enforcement of the right conferred by article 21, whilst the Presidential order is in operation. The right conferred by Article 21 is the right not to be deprived of personal liberty except according to procedure prescribed by law. Therefore, when the executive detains a person without there being any law at all authorising detention or if there is such law, otherwise than in accordance with its provisions, that would clearly be in violation of the right conferred by article 21 and such vio (1) [1974] S.C.R.1. (2) ; 436 lation would a fortiori toe immune from challenge by reason of the Presidential order: It must follow inevitably from this that when a detenu challenges an order of detention on the ground that it is mala fide or is not in accordance with the provisions of the Act or is outside the authority conferred by the Act, he would be seeking to enforce the right of personal liberty conferred on him under article 21 and that would be inhibited by the Presidential order. That takes me to a consideration of the concept of the rule of law on which so much reliance was placed on behalf of the detenus in order to save their writ petitions from the lethal effect of the Presidential order. The contention on behalf of the detenus was that their writ petitions were for enforcement of the right of the personal iiberty based on the principle of the rule of law that the executive cannot interfere with the liberty of a person except by authority of law and that was not within the inhibition of the Presidential order. The question is: what is this principle of the rule of law and does it exist under our Constitution as a distinct and separate constitutional principle, independently and apart from Article 21, so as to be capable of enforcement even when enforcement of Article 21 is suspended by the Presidential order. The Great Charter of Liberties of England, commonly known as the Magna Carta, was granted under the seal of King John in the meadow called Runnymede on 15th June, 1215. This was followed within a couple of years by a revised version of the Charter which was issued in the name of Henry III in 1217 and ultimately with slight amendments, another Charter was re issued by Henry III in 1225 and that document has always been accepted as containing the authorised text of Magna Carta. Whenever reference is made to Magna Carta, it is to the Charter of 1225. which is also described as "9 Henry III (1225)". Magna Carta, according to Sir Ivor Jennings symbolises "what we should now call the rule of law, government according to law or constitutional government" which means that all power should come from the law and that "no man, be he king or minister or private person is above the law". It recognised that "the liberties of England, which means the liberties of all free men depended on the observance of law by King, lord and commoner alike", and "without law there is no liberty". XXIX contains the famous clause of the Magna Carta which provided that: "No free man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land." Thus for the first time the great principle was enunciated though even before, it was always part of the liberties of the subject that no one shall be imprisoned or deprived of his liberty except by the authority of the law of the land. The power of the King to arrest a person or to deprive him of his liberty was circumscribed by law. That is why Bracton said about the middle of the 13th Century " the king himself ought not to 437 under man but under God and under the law, because the law makes A the King. Therefore, let the King attribute to the law what the law attributes to the King, namely, lordship and power, for there is no king where will governs and not law". Magna Carta was confirmed again by the successive kings on the insistence of Lords and commons and the rule of law embodied in Magna Calla governed the actions of the King vis a vis his subjects. But this great principle of liberty was placed in jeopardy in the 17th Century when a claim was made by the King that he had a prerogative right to arrest and detain subject and this prerogative right was necessary for the defence of the Realm. When the King sought to raise moneys from the subjects without the sanction of the Parliament, it was resisted by Darnel and others and they were on that account committed to prison under the orders of the King. On the application of these persons, who were so imprisoned, a writ of habea corpus was issued and the return made to it on behalf of the King was that they were imprisoned per speciale mandate Domini Regis warnel 's case). This return was considered sufficient and the writ was discharged. The effect of this decision was that King needed no authority of law in order to deprive a subject of his personal liberty. But the Parliament was quick to nullify this decision by enacting the Petition of Right, 1628 and it reaffirmed the right to personal liberty in section 3 of that Act and declared such a cause of imprisonment to be unlawful. The principle that the Executive cannot interfere with the liberty of a subject unless such interference is sanctioned by the authority of law was thus restored in its full vigour. Blackstone in his Commentaries on the Laws of England, vol. 1, 4th ed. p. 105 stated the principle in these terms: E " the law of England regards, asserts and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one 's person to whatsoever place one 's own inclination may direct, for imprisonment or restraint, unless by due course of law It cannot ever be abridged at the mere discretion of the magistrate, without the explicit per mission of the laws. Here again, the language of the Great Charter is, that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land." (emphasis supplied) Since then, the validity of this principle has never been doubted and the classical statement of it is to be found in the oft quoted passage from the judgment of Lord Atkin in Eshugbayi (Eleko) vs Officer Administering the Government of Nigeria (supra) where the learned Law Lord said: "The Governor acting under the ordinance acts solely under executive powers, and in no sense a Court. As the. executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or 438 property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive. " Since in this country prior to the commencement of the Constitution, we were administering British jurisprudence, this constitutional principle was equally applicable here. That was the direct result of the binding authority of the decision of the Privy Council in the aforementioned case. But quite apart from that, the courts in India uniformly accepted this constitutional principle as part of the law of the land. Vide Secretary of State for India vs Hari Bhanji(1) and Province of Bombay vs Khushaldas Advani(2). Bose, J., in P. K. Tare vs Emperor(3) quoted with approval the aforesaid passage from the judgment of Lord Atkin and pointed out that before the executive can claim power to override the rights of the subject "it must show that the legislature has empowered it to do so". The learned Judge also referred to the following passage from the dissenting judgment of Lord Atkin in Liversidge vs Anderson(4) "It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting that the Judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive; alert to see that any coercive action is justified in law." (emphasis supplied), and, pointing out that Lord Macmillan and Lord Wright also agreed with this principle, observed that these principles of liberty "to which Lord Atkin refers, apply as much to India as elsewhere". So also in Vimlabai Deshpande vs Emperor(5) the same two passages, one from the judgment of Lord Atkin in Eshugbayi 's case (supra) and the other from the judgment in Liversidge 's case (supra) were referred to with approval by Bose and Sen, JJ. It was also accepted by a Division Bench of the Calcutta High Court consisting of Malik and Remfry, JJ. in Jitendranath Ghosh vs The Chief Secretary to the Government of Bengal( 'i) that " in accordance with British jurisprudence, and with the jurisprudence of British India, no member of the excutive can interefere with the liberty or property of a British subject, or of a foreigner in our land, except on the condition that he can, and, if duly called upon, must support the legality of his action before a court of justice". The Division Bench pointed out that "the courts can, and in a proper case must consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the legislature, Eshugbayi Eleko 's case". Ameer Ali, A.C.J., and section R. Das, J. also quoted with approval in re : Banwarilal Roy(7) the aforesaid passage from the judgment (1) Mad. 273. (2) ; (3) A. I. R. (4) (5) A. I. R. (6) I. L. R. at 377. (7) (48 Cal. Weekly Notes 766 at 780) 439 of Lord Atkin in Eshugbayi Eleko 's case (supra) and relied on the decision in Jitendranath Ghosh 's case (supra) and particularly the observations from the judgment in that case which I have just reproduced. These observations clearly show that in our country, even in pre constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law. B It would be seen from the above discussion that, even prior to the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts. It was clearly 'law in force ' and ordinarily, by reason of Article 372, it would have continued to subsist as a distinct and separate principle of law even after the commencement of the Constitution. But when the Constitution was enacted, some aspects of this principle of rule of law were expressly recognised and given constitutional embodiment in different Articles of the Constitution. Thereafter they did not remain in the realm of unwritten law. Article 21 enacted one aspect of the principle of rule of law that executive cannot deprive a person of his life or personal liberty without authority of law and added a requirement that the law which authorises such deprivation must prescribe a procedure. Another aspect of the principle of rule of law was enacted in clause (1) of Article 31. namely, that no one shall be deprived of his property save by authority of law. That is why it was pointed out by Shah, J. in R .C. Cooper 's case (supra) that "Clauses (1) and (2) of Article 31 subordinate the exercise of the power of the State to the basic concept of the rule of law". A third aspect was constitutionailsed in various sub clauses of clause (1) of Article 19 inhibiting executive action unsupported by law, which conflicted with the different freedoms guaranteed in these sub clauses. Then Article 265 recognised and enacted a yet fourth aspect, namely, that no tax shall be levied and collected without authority of law. Article 19, clause (1), Article 21, Article 31, clause (1) and Article 265 thus embody different aspects of the principle of rule of law. We are concerned in these appeals only with Article 21 and, therefore, I shall confine my discussion only to that Article. Now, to my mind, it is clear that when this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a fundamental sight and enacted as such in Article 21, it is difficult to comprehend how it could continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture. l fail to see how it could continue in force under Article 372 when it is expressly recognized and embodied as a fundamental right in article 21 and finds a place in the express provisions of the Constitution. Once this principle is recognised and incorporated in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State. This position 440 indeed become incontrovertible when we notice that, while recognising and adopting this principle of rule of law as a fundamental right, the Constitution has defined its scope and ambit and imposed limitation on it in the shape of Article 359A, clauses (1) and (1A). When the constitution makers have clearly intended that this right should be subject to the limitation imposed by Article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same right continues to exist independently, but free from the limitation imposed by Article 359, clauses (1) and (1A). Such a construction would defeat the object of the constitution makers in imposing the limitation under Article 359, clauses (1) and (1A) and make a mockery of that limitation. The consequence of such a construction would be that, even though a Presidential order is issued under clause (1) of Article 359 suspending the right to move the court for enforcement of the right guaranteed under Article 21, the detenu would be entitled to ignore the Presidential order and challenge the order of the detention on the ground that it is made otherwise, than in accordance with law, which is precisely the thing which is sought to be interdicted by the Presidential order. The Presidential order would in such case become meaningless and ineffectual. Can an interpretation be accepted which would reduce to futility Article 359, clause (l) in its application in relation to Article 21 ? Could the constitution makers have intended such a meaning? The only explanation which could be offered on behalf of the detenus was that the object of Article 359, clause (1) is merely to prevent a person from moving the Supreme Court under Article 32 for enforcing the right of personal liberty and it is not intended to effect the enforcement of the right of personal liberty based on the rule of law by moving the High Court under Article 226. But this explanation is wholly unconvincing. It is difficult to understand why the constitution makers should have intended to bar only the right to move the Supreme Court under Article 37 in so far as the. right of personal liberty is concerned. There would be no point in preventing a citizen from moving the Supreme Court directly under Article 32 for securing his release from illegal detention, while at the same time leaving it open to him to move the High Court for the same relief and then to come to the Supreme Court in appeal, if necessary. That would be wholly irrational and meaningless Therefore, the only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under Article 21 is by holding that the principle of rule of law, that the executive cannot interfere with the personal liberty of any person except by authority of law, is enacted in Article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty, independently and apart from that Article. Consequently, when the enforcement of the right of personal liberty conferred by Article 21 is suspended by a Presidential order, the detenu cannot circumvent the Presidential order and challenge the legality of his detention by falling back on the supposed right of personal liberty based on the principle of rule of law. It was also said on behalf of the detenus that under our constitutional set up, the executive is bound to act in accordance with law and 441 this obligation of the executive arises from the very basis of the doctrine of distribution of powers amongst different bodies created by the Constitution as also from the terms of Articles 73, 154 and 256 of the Constitution. This obligation, contended the detenus, could be enforced against the executive under Article 226 by issue of a writ "for any other purpose". Now, it is true that under our Constitution, the executive is a limited executive and it is bound to act in accordance with law and cannot disobey it. If the says that the executive shall be entitled to detain a person only on the fulfillment of certain conditions and according to a specified procedure, it cannot make an order of detention if the prescribed conditions are not fulfilled or the specified procedure is not followed. The executive is plainly and indubitably subordinated to r the law and it cannot flout the mandate of the law but must act in accordance with it. The Judicial Committee of the Privy Council pointed out this constitutional position in Eastern Trust Company vs Mckenzie Mann & Co. Ltd.( ') in an appeal from the Supreme Court of Canada: "The non existence of any right to bring the Crown into Court does not give the Crown immunity from all law, or authorize the interference by the Crown with private rights at its own mere will It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. (emphasis supplied)". This rule must naturally apply with equal force in our constitutional set up and that was recognised by this Court in Rai Sahib Ram Jawaya Kapur vs The State of Punjab(2) where Mukherjea, J., speaking on behalf of the Court said: "In India, as in England, the executive has to act subject to the control of the legislature" and proceeded to add: " the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution " In Bharat Singh 's case (supra) also, this Court pointed oui: "our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State Legislative, executive and judicial each organ having some check direct or indirect on the other. and (3) the rule of law which includes judicial review of arbitrary executive action". The obligation of the executive to act according to law and not to flout or disobey it is, therefore, unexceptionable and cannot be disputed. But this obligation, in so far as personal liberty is concerned, is expressly recognised and enacted as a constitutional provision inter alia in Article 21 and when the Constitution itself has provided that the enforcement of this obligation may be suspended by a Presidential order, it is difficult to see how the intention of the constitution makers can be allowed to be defeated by holding that this obligation exists independently of article 21 and it can be enforced despite the limitation imposed by the constitutional provision The same reasoning which I (1) (2) [19551 2 section C. R. 225 442 have elaborated in the preceding paragraph would equally apply to repel the present argument. Before I go to the decided cases, I must refer to one argument which strongly supports the view I am taking. It is almost conclusive. It is an argument for which I must express my indebtedness to Prof. P. K. Tripathi. In an article written on 'Judicial and Legislative Control over the Executive during Martial Law ' and published in the Journal Section of All India Reporter at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial Law may support the conclusion that a Presidential order mentioning Article 21 takes away, wholly and completely, the right of an individual to obtain a writ of habeas corpus challenging the legality of his detention. I must of course hasten to make it clear that there is no Martial law any where in the territory of India at present and I am referring to it only in order to buttress the conclusion otherwise reached by me. The concept of Martial law is well known in the British and American jurisprudence. When a grave emergency arises in which the executive finds itself unable to restore order by employing the ordinary `civilian machinery and it becomes necessary for it to use force, it may declare what is commonly termed 'martial law '. Martial law means that the executive calls the military to its aid and the military, acting under the general authority of the executive, proceeds to quell violence by violence. When martial law is in force, it is well settled that the courts cannot issue a writ of habeas corpus or otherwise interfere with the military authorities or the executive to protect the life or liberty of an individual, even if illegal or mala fide action is taken or threatened to be taken by the military authorities or the executive. To give only one example: In Ireland in John Allen 's case( '), the martial law authorities ordered all persons to deposit their fire arms within twenty four hours with the army authorities on pain of death. John Allen. who failed to obey, was arrested and sentenced by the military tribunal, which was, in law, a mere body of army men advising the officer commanding, to death, and the martial law authorities announced the day and date when he was to be executed. The court was moved on behalf of John Allen on the ground that the order of the military tribunal was invalid, but the court refused to interfere on the theory that when martial law is properly declared, the court will not issue habeas corpus during the period when martial law is in force. It is the basic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any similar orders. Now, under our Constitution there does not appear to be any express provision conferring power on the executive to declare martial law. But it is implicit in the text of Article 34 of the Constitution that the Government may declare martial law in any area within the territory of India. What are the legal implications and consequences of declaration of martial law is not provided any where in the Cons (1) [1921] 2 Irish Reports 241. 443 titution. It is, therefore, obvious that merely declaring martial law Would not, by itself, deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to lie and liberty. In our country, unlike England, the right to life and liberty is secured as a fundamental right and the right to move the Supreme Court for enforcement of this right is also guaranteed as a fundamental right. Also the power to issue a writ or order in the nature of habeas corpus has been expressly conferred of the High Courts by a constitutional provision, namely, Article 226. Therefore, the declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Article conferring the right to life and liberty as also of Articles 32 and 226 and, unless the right of an individual to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provisions of the Constitution, the individual would be entitled to enforce the right to life and liberty under Article 32 or Article 226 or by resorting to the ordinary process of law, even during martial law. That would be contradictory of the basic and essential feature of martial law and make it impossible to impose effective martial law anywhere at any time in the territory of India. Such a consequence could never have been imagined by the constitution makers. They could never have intended that the Government should have the power to declare martial law and yet it should be devoid of the legal effect which must inevitably follow when martial law is in force. Moreover, Article 34 itself presupposes that acts contrary to law may be committed by The military authorities or the executive during the time when martial law is in force and that is why it provides that after the martial law ceases to be in force, Parliament may by law indemnify "any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area". This provision clearly postulates that during the time that martial law is in force, no judicial process can issue to examine the legality of any act done by the military authorities or the executive in connection with the maintenance or restoration of order. But, how is this result to be achieved under the Constitution ? The only provision in the constitution which authorises temporary suspension or taking away of the right of an individual to move any court for enforcement of his right to life and liberty is Article 359, clause ( I ) . If the Presidential order under clause (1) of Article 359 suspending enforcement of the fundamental right under Article 21 were construed not to have the effect of barring an individual from moving the court for impugning the legality of the act of the executive interfering with his life or liberty, on the assumption that in doing so, he is merely enforcing his right to life or personal liberty based on the rule of law. the result would be that even when and where martial law is in force, courts will continue to have the power to examine the legality of the act of the executive, because, as explained earlier, the mere 444 declaration of martial law does not, under our Constitution, have the effect of taking away that power. That would be plainily an insufferable situation which would carry the power of courts even beyond that claimed by the United States courts in the case of the ex parte Milligan( ') which case went to the farthest limit and which has for that reason been criticised by great authorities like E. section Corwin and has not been consistently followed even by the United States Supreme Court Vide Moyer vs Peabody(2) and Duncan vs Kohanmeku.(3) There can be no two opinions that during martial law the courts cannot and should not have power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including the ground of mala fide. But, if the courts are to be prevented from exercising such power during martial law, that situation call be brought about only by a Presidential order issued under Article 359, clause (1) and in no other way and the Presidential order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21 must be construed to bar challenge to the legality of detention in any court, including the Supreme Court and the High Courts, whilst the Presidential order is in operation. I may also in this connection refer to the decision of the House of Lords in Attorney General Y. De Keyser 's Royal Hotel.(4) There, in May 1916, the Crown, purporting to act under the Defence of Realm Consolidation Act, ]914 and the Regulations made thereunder took possession of a hotel for the purpose of Housing the Headquarters ' personnel of the Royal Flying Corps and denied tthe legal right of the owners to compensation. The owners yielded up possession under protest and without prejudice to their right and by a Petition of Right, they asked for a declaration that they were entitled to compensation under the Defence Act. The Crown was plainly liable to pay compensation under the Statute, but it sought to justify its action in taking possession of the hotel without payment of compensation, under the sanction of the Royal Prerogative. Tile question which, therefore, arose for consideration before the House of Lords was whether the Royal Prerogative was available to the Crown for taking possession of the Hotel without compensation, when the statute authorised taking of such possession but on condition on payment of compensation. The House of Lords unanimously held that, in view of the statutory provision on the subject, the Royal Prerogative to take property without payment of compensation did not subsist and the principle laid down was that where by Statute, the Crown is empowered to do what it might heretofore have done by virtue of its prerogative, it can no longer act under the prerogative and must act under and subject to the conditions imposed by the statute. Lord Dunedin in the course of his speech observed: "None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules." (1) (1866) 4 Wallace 2. (2) (3) ; (4) ; 445 Lord Atkinson quoted with approval the following pregnant passage A from the judgment of the Master of the Rolls in the same case . "Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disrgard them and fall back on prerogative ?", and pointed out that the question posed by the Maqster of the Rolls was unanswerable. The learned Law Lord then proceeded to add: "It is quite obvious that it would be useless and meaning less for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do." The other learned Law Lords who participated in the decision also made observations to the same effect in the course of their speeches. Now it is obvious that the contention of the detenus in the present case is very similar to that advanced on behalf of the Crown in De Keyser 's Royal Hotel 's case (supra). It almost seems to be an echo of that contention and it must inevitably be answered the same way. When the right of personal liberty based on the rule of law which existed immediately prior to the commencement of the Constitution has been enacted in the Constitution as a fundamental right in Article 21 with the limitation that, when there is a Proclamation of Emergency, the President may, by order under Article 359, clause (1) suspend its enforcement, it is impossible to imagine how that right of personal liberty based on the rule of law can continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Article 359, clause (1). It would be meaningless and futile for the constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by Article 21, if the detenu could, with impunity, disregard such limitation and fall back on the right of personal liberty based on the rule of law. There is a decision of this Court in Dhirubha Devisingh Gohil vs The State of Bombay(l) which clearly supports this view. The question which arose for determination in this case was whether the Bombay Taluqdari Tenure Abolition Act, 1949 was a valid piece of legislation. When this Act was enacted by the Bombay Legislature, (1) [1955] I section C. R. 691. 446 the Government of India Act, 1935 was in force and the validity of this Act was challenged on the ground that it was in violation of section 299, sub section (2) of the Government of India Act, 1934. Since this Act was included in the Ninth Schedule to the Constitution by the Constitution of India (First Amendment) Act, 1951, the State con tended that by reason of Article 31 B, this Act was immune from attack of the kind put forward on behalf of the petitioner. article 31 1 provides inter alia that none of the Acts specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such act or provision is inconsistent with or takes away or abridges ally of the right conferred by any provisions of Part III. The petitioner disputed the applicability of article 31 B on the ground that the protection under that article was confined only to a challenge based on the provisions of Part III of the Constitution and did not extend to a challenge. based on violation of section 299, sub section (2) of the Government of India Act, 1935. The petitioner relied on the words " is inconsistent with or takes away or abridges any rights conferred by any provisions" of Part III and contended that inconsistency with or taking away or abridgement of the right conferred by section 299, sub section (2) of the Government of India Act, 1935 was not within the protection of Art 31 B. This contention of the petitioner was negatived and it was held by this Court speaking through Jagannatha Das, J.: "When Article 31 B protects is not a mere "contravention of the provisions" of Part III of the Constitution but an attack on the grounds that the impugned Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part. " one of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a 'law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law. That is also the very right which was previously secured to the person under section 299 of the Government of India Act. The challenge now made to the validity of the impugned Act is based on the alleged violation of that right." '7 But it is urged, that even so, article 31 B protects only the violation of the fundamental right in so far as "it was conferred by Part III of the Constitution" and that this right cannot be said to have been "conferred" by the Constitution. We cannot agree with this contention. This is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency of the Legislature and which in substance was a fundamental right, was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution. There is therefore nothing inappropriate in referring to this right which was pre existing, along with the other fundamental rights for the first time secured by this Constitution, when grouping them 447 together, as fundamental rights "conferred" by the Constitution." This Court held that when Article 31 B protected the Act against attack on the ground that the Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of "Part III, the protection extended to giving immunity against violation of the 8 right secured by section 299, subsection (2) of the Government of India, 1935 because that was the very right lifted into the category of fundamental right and enacted as Article 31, clause (2) of the Constitution and it could accordingly with appropriateness, be referred to as the right conferred by Article 31, clause (2). On the parity of reasoning, it may be said that the right based on the principle of rule of law that no one shall be deprived of his life or personal liberty except by authority of law, which was a pre existing right, was lifted into the category of fundamental right and enacted as Article 21 and hence it became a fundamental right conferred by Article 21 and ceased to have any distinct and separate existence. The maxim 'expressum facit cessare tacitum ' that is what is expressed makes what is silent cease, would also clearly be applicable in the present case. This maxim is indeed a principle of logic and common sense and not merely a technical rule of construction. It was applied in the construction of a constitutional provision in Shankara Rao Badami vs State of Mysore(1). The argument which was advanced in that case was that the existence of public purpose and the obligation to pay compensation were necessary concomitants of compulsory acquisition of private property and so the term 'acquisition ' in Entry 36 of List II of the Seventh Schedule to the Constitution must be construed as importing by necessary impliction the two conditions of public purpose and payment of adequate compensation, and consequently, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1955, which provided for acquisition of the rights of the inamdars in inam estates in Mysore State without payment of just and adequate compensation was beyond the legislative competence of the State Legislature. This argument was rejected on the ground that the limitations of public purpose and payment of compensation being expressly provided for as conditions of acquisition in Article 31 (2), there was no room for implying either of these limitations in the interpretation of the term 'acquisition ' in Entry 36 of List II. Ramaswamy, J., speaking on behalf of the Court observed G "It is true that under the Common law of eminent do main as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But when these limitations are expressly provided for in Article 32(2) and it is further enact cd that no law shall be made which takes away or abridges (1) ; 448 these safeguards, and any such law, if made, shall be void, there can be no room for implication, and the words 'acquisition of property ' in entry 36 must be understood in their natural sense of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative entry 33 of List I or legislative entry 36 of List II for it is separately and expressly provided for in Article 31(2). The well known maxim expresum fact cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction. The express provision in Article 31 (2) that a law of acquisition in order to be valid must provide for compensation will, therefore, necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word "acquisition" in entry 36 of List II. In the face of the express provision of Article 31(2), there remains no room for reading any such implication in the legislative heads. " Similarly, in the present case, on an application of the maxim expressum facit cessare tacitum, the express provision in Article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution. I find myself fortified in this conclusion by the view taken on a similar question under the Irish Constitution which also contains a catena of articles conferring fundamental rights Kelly in his book one, 'Fundamental Rights in the Irish Law and Constitution ' points out "that the various fundamental rights which were previously notionally present in the common law have been subsumed in and replaced by the written guarantees" and, therefore. , these rights cannot be found elsewhere than in the Constitution. The decision of the High Court of Justice in Ireland in 'State (Walsh and others) vs Lennon and others"(1) has also adopted the same view. The petitioners in this case, who were detained in Arbour Hill Military Detention Barracks awaiting trial on a charge of murder before a Military Court established under Emergency Powers (No. 41) order, 1940, made an application to the High Court for an order of habeas corpus directed to the Governor of the Detention Barracks in which they were held and for an order of prohibition directed to the President and members of the Military Court before whom it was ordered by Emergency Powers (No. 41F) order, 1941 that they should be tried. The application inter alia challenged the validity of the Emergency Powers (No. 41 F) order, 1941 on the ground that it was ultra vires the Government, as it directed that the Military Court, which was to try the petitioners. should try them together and so precluded the Court from exercising its discretion and control over its own procedure and was thus violative of the right of a citizen to insist that he shall not be (1) 1942 Irish Reports 112. 449 tried on a criminal charge save in due course of law and was, also in A conflict with the right of a citizen to personal liberty. The right of personal liberty was guaranteed by Article 40, section 4, sub section (1) of the Constitution, while the right of a citizen charged with a criminal offence to insist that he shall not be tried save in due course of law was to be found in article 38, section 1. The respondents relied on Article 28, section 3, sub section (3) of The Constitution which provided: "Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be For the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion or to nulify any act done or purported to be done in pursuance of any such law." and contended that by reason of this provision, the Emergency Powers (No. 41 F) Order, 1941 was protected from challenge on the ground of contravention of Article 38, section 1 and Article 40, section 4, sub section ( 1 ) of the Constitution. This contention clearly had the effect of putting the petitioners out of court and" therefore, they sought to get round this difficulty by arguing that the constitutional rights, which they claimed to have been infringed were derived not from the written constitution, but from the Common Law, and consequently Article 28, section 3, sub section (3) of the Constitution did not stand in their way. This argument, which was very similar to the present argument advanced before us, was unhesitatingly rejected by all the three judges who took part in the decision. Maguire J. said: "The contention is that the constitutional principles which assure to a citizen his personal liberty, his right to resort to this Court for an order of habeas corpus, his right that he shall not be tried on a criminal charge save in due course of law, have as their source the Common Law, and exist side by side with these rights in the written Constitution. In support of this contention reliance is placed on the decision of the Supreme Court in Burke 's Case , particularly on the passage in the judgment of Murnaghan J. at p. 171, where he says 'certain constitutional principles are stated in the Constitution but many other important constitutional principles have been accepted as existing in the law then in force. ' " I do not find in the judgment of Murnaghan J. Or else where in the judgments in that case any basis for the contention that these rights are to be found in a body of principles which exist side by side with the written Constitution having their source in the Common Law, and of equal validity with the principles stated in the Constitution, and which on the argument here, would have the added virtue that they are uncontrolled by article 28, section 3 sub section 3. The constitutional rights relied upon in this case find clear expression in Article 40 and 38 of the Constitution. In my view they cannot be found elsewhere than in the Constitution. The advantages of a written Constitution are manifest. Such a Constitution can, and our Constitution does, give 31 833SCI/76 450 rights such as these definite and clear expression. Our Constitution can, and does, protect them against being whittled away save with great difficulty. The framers of the Constitution have provided that, after the passage of a limited time, many, though not all of the rights which it gives are put beyond the reach of interference by ordinary law. The framers have however, deliberately inserted article 28, section 3, sub section 3, which is clearly designed to prevent the Courts from invoking anything in the Constitution to in validate enactments passed, or to nullify acts done, or which purport to be done, in pursuance of Acts passed for securing the public safety or the preservation of the State in time of war. " Gavan Duffy, J. also observed to the same effect: "The applicants seek, in the alternative, to base their claims to habeas corpus and prohibition upon antecedent rights of personal liberty and regular trial at Common Law; but, whether or not the imminent Common Law of Ireland needed generally any article 50 (containing the laws in force) to retain its vigour, the particular Common Law principles here invoked must both, in my opinion, of necessity have merged in the express provisions declaring how the two corresponding rights are to be in force under the new polity established by An Bunreacht." And so did Martin Maguire, J. when he said: "It is argued, in the alternative, that, apart from the Constitution and existing side by side with it,, there is a body of constitutional law, founded on Common Law, and comprising the same constitutional rights which the prosecutors seek to assert, and in respect of which they demand the relief claimed in these proceedings. This argument involves the propositions that the State has two Constitutions, the one enacted by the people, written and defined the other un written and undefined, and that the latter may be invoked, or called in aid, to the extent even of defeating the clear terms of the Constitution where a conflict real or apparent is alleged between them. There is no authority for these propositions. I am unable to accept this argument. " On this view, all the three judges of the High Court held that the Emergency Powers (No. 41 F) Order" 1941 was immune from challenge by reason of Article 28, section 3, sub section (3) of the Constitution. This decision was taken in appeal and affirmed by the Supreme Court, but this point about the continuance of the common law rights side by side in the constitution, was not examined since it was obvious that the Emergency Powers (No. 41 F) order, 1941 could not be set at naught on the ground of repugnancy to any supposed Common Law rights. It will be seen that there is a close analogy between this decision of the High Court and the present case 451 and the observations of the three judges quoted above are directly applicable here. The detenus, however, strongly relied on the decisions of this court in Bharat Singh 's case (supra), Ibrahim & Co. 's case (supra) Bennet Coleman & Co. 's case (supra) and Shree Meenakshi Mills ' case (supra) in support of their contention that the principle of rule of law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent principle unaffected inter alia by the enactment of Article 21. I have already referred to these decisions earlier and it will be evident from what l have said, that these decisions do not lay down any such proposition as is contended for on behalf of the detenus. What these decisions say is only this, namely, that Article 358 protects against challenge under Article 19 only such executive action ac is taken under lawful authority and if any executive action is taken without authority of law or. in pursuance OF a law which is void, it will not he protected from challenge under Article 19 by Article 353 and it will be void to the extent to which it conflicts with Article 19. These decisions, properly read, do not support the thesis put forward on behalf of the detenus. The detenus then relied on the decision of this Court in Bidi Supply Co. vs Union of India.(1) There, an omnibus order was made under section 5, sub section (7A) of the Income Tax Act transferring cases of the petitioner form one place to another. the petitioner challenged this order as being outside `the power conferred under section 5, sub section (7A) and hence violative of the fundamental rights guaranteed to him by Articles 14, 19(1)(if) and (b) and 31 of the Constitution. This Court held that the omnibus order made in this case was not contemplated or sanctioned by sub section (7A) of section 5 and. therefore, the petitioner was still entitled to the benefit of the provisions of sub sections (1) and (2) of section 64 and since the Income Tax authorities had by an executive order, unsupported by law, picked out the petitioner for discriminatory treatment there was violation OB the equality clause of the Constitution and hence the petitioner was entitled to relief under Article 32 of the Constitution setting aside the impugned order. S.R. Das, C.J., speaking on behalf of the Court, observed: "As said by Lord Aktin in Eshugbayi Eleko 's case the executive can only Act in pursuance of the powers given to it by law and it cannot interfere with the liberty, property and rights of the subject except on the condition that if can support the legality of its action before the Court. were there was no such order of transfer as is contemplated or sanctioned by subsection (7A) of section 5 and, therefore. the present assessee still has the right, along with all other Bidi merchants carrying on business in Calcutta to have his assessment proceedings before the Income tax: officer of the. area in which his place of business is situate. The income tax authorities have by an executive order, unsupported by (1) [1156] section C. R. 267. 452 law, picked out this petitioner and transferred all his cases by an omnibus order unlimited in point of time." (emphasis supplied). and Since the action of the Income tax authorities was contrary to sub sections (1) and (2) of section 64, the impugned order was held to be bad. Hence it will be noticed that the impugned order operated to the prejudice of the petitioner by affecting his rights under section (1) and (2) of Section 64 but it did not affect any of his rights under Article 19 or Article 21 or clause Cl) of Article 31 and therefore, the principle of rule of law that the executive cannot act to the prejudice of a person without authority of law could by legitimately invoked. It continued to be in law in force to the extent to which it was not recognised and enacted in any provision of the Constitution. The next decision to which I must refer in this connection is Bishan Das & Ors vs The State of Punjab. This was a petition under Article 32 of the Constitution and the action of the officers of the State Government impugned in this case was forcible dispossession of the petitioners of properties which were in their management and possession. The challenge to the impugned action of the officers of the State Government was based on violation of the fundamental right guaranteed under clause (1) of Article 31. This Court upheld the challenge and struck down the impugned action as being without the authority of law and while doing so. made the following observations which were strongly relied onp on behalf of the detenus: "Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of basic principle of the rule of law the action of the Government in taking the law into their hands and dispossession the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority". (emphasis supplied). These observations Made in the context of a petition for enforcement of the fundamental right under Article 31. clause (1) clearly show that this Court regarded the principle of rule of law that no person shall be deprived of his property "without reference to any law or legal authority '" as embodied in Article 31, clause (1) and did not rely upon this principle of rule of law as a distinct and independent principle apart from Article 31, clause (1): otherwise the petition under Article 32 would not have been maintainable and this Court could not have granted relief. The last decision to which I must refer is the decision of this Court in State of Bihar vs Kameshwar Prasad Verma.(2) That was a case arising out of a petition for a writ of habeas corpus filed under. Article 226 for release of one Bipat Gope from illegal detention. This Court held that the State Government had failed to show under what lawful authority Bipar had been re arrested and in the absence of such lawful authority, the detention was illegal. Kapur, J., speaking on behalf of the Court referred with approval to the observations of Lord Atkin (1) ; (1) ; 453 in Eshugbayi Eleko 's case (supra) and pointed out: "It is the same A jurisprudence which has been adopted in this country on the basis of which the courts of this country exercise jurisdiction". These observations were relied upon on behalf of the detenus to contend that the principle of rule of law in Eshugbayi Eleko 's case (supra) was held by this Court to have been adopted in this country and it must, there fore, be enforced independently of Article 21. But I do not think that is the elect of these observations. What Kapur, J., said was only this, namely that the principle of rule of law in Eshugbayi Eleko 's case (supra) had been adopted in this country. He did not make it clear how it had been adopted nor did he say that it had been adopted as a distinct and independent principle apart from the fundamental rights. There can be no doubt that the principle in Eshogbayi Eleko 's case (Supra) had been adopted in this country in Article 21 to the extent to which it protects personal liberty. I will, therefore, be seen that there is no decision of this Court which says that there is a right of personal liberty based on the rule of law distinct and independent from that guaranteed by Article 21. I must now turn to the decision of this Court in Makhan Singh vs State of Punjab (supra) on which very strong reliance was placed on behalf of the detenus. That was a decision given in a batch of twenty six appeals from the decisions of the High Courts of Bombay and Punjab. The appellants in these six appeals were detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(i)(b) of the Defence of India Rules made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India ordinance, 1962. They applied to the Punjab and the Bombay High Courts respectively under section 491(1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. Their contention was that section 3(2)(15)(i) and section 40 of the Defence of India Act, 1962 which replaced the Defence of India ordinance and Rule 30(l)(b) under which they were detained were constitutionally invalid because they contravened their fundamental rights under articles 14, 21 and 22(,4) (5) and (7) of the Constitution and so they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty There was in operation at that time a Proclamation of Emergency dated 26th October, 1962 issued by the President under article :352, clause (1 ) on account of the Chinese aggression. The President had also issued an order dated 3rd November, 1962 under article 359, clause (1) suspending the right of any person to move any court for the enforcement of the rights conferred by articles 21 and 22 "if such person has been deprived of any ,such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order made thereunder. " The contention of the State Governments based on this Presidential order was and that contention found favour with both High Courts that the Presidential order created a bar which precluded the appellants from maintaining the petitions under section 491 (1)(b) of the Code of criminal Procedure. On this contention. two questions arose for determination before this Court. The first was as to what was the true scope and effect of the Presidential order and the second was whether the bar created by the Presidential order 454 operated in respect of applications made by the appellants under section 491(1) (b) of the Code of Criminal Procedure. This Court in a majority judgment delivered by Gajendragadkar, J., analysed the pro visions of article 359, clause (1) and held that the words "any court" in that Article must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens". The majority judgment then proceeded to add: "The sweep of article 359(1) and the Presidential order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when lt is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the said specified fundamental right" Having thus disposed of the first question, the majority judgment went on to consider the second question and after analysing the nature of the proceedings under section 491(1)(b) of the Code of Criminal Procedure, held that the prohibition contained in article 359, clause (1) and the Presidential order would apply "as much to proceedings under section 491 ( 1 ) (b) as to those under article 226(1) and article 32 (1)". It was obvious that on this view, the petitions under section 491(1)(b) were not maintainable" since the only ground on which they challenged the orders of detention was that the provisions of section 3(2)(15)(i) as well as rule 30(l)(b) were invalid as offending against Articles 14, 21 and 22 and in the circumstances it was not necessary for the. ; Court to express any opinion on the questions to what were the pleas available to a citizen under the Presidential order in challenging the legality or propriety of his detention. Still however, the majority judgment proceeded to give its opinion on this question in the following terms: It still remains to consider what are the pleas which are now open to the citizens to take ill challenging the legality or the propriety of their detentions either under section 491(1) (b) of the Code or article 226(1) of the Constitution. We have already seen that the right to move any court which is suspended by article 359(1 ) and the Presidential order issued under it is the right for the enforcement of such of the lights conferred by Part III as may be mentioned in the order. If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf` is not suspended, because it is outside article 359(l) and consequently outside the Presidential order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. 455 Take also a case where the detenu moves the Court for A a writ of habeas corpus on the ground that his detention has been ordered malafide. It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is malafide would not be enough the detenu will have to prove the malafides. But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential order. That is another kind of plea which is outside the purview of article 359(1). We ought to add that these categories of pleas have been mentioned by us by way of illustration" and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order. " The strongest reliance was placed on behalf of the detenus on these observations in the majority judgment. It was contended on behalf of the detenus that the observations clearly showed that if an order of detention is challenged on the ground that it is in violation of the mandatory provisions of the Act or is made malafide, such a plea would be outside article 359, clause (1) and would not be barred by a Presidential order specifying article 21. The detenus, in support of this contention leaned heavily on the words 'such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order", and "that is another kind of plea which is outside the purview of article 359(,1)" occurring in these observations and urged that such a plea was held to be permissible because it was outside the purview of Art 359, clause (1) and not because it was outside the terms of the particular Presidential order. Now, at first blush, these observations do seem to support the contention of the detenus. But there are two very good reasons why I do not think these observations can be of much help in the determination of the question before us. In the first place, the questions to what were the other pleas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential order dated 3rd November, 1962, was not in issue before the Court and did not fall to be decided and the aforesaid observations made by the Court on this question were, therefore, clearly obiter. These observations would undoubtedly be entitled to great weight, but, as pointed out by this Court in H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India(1) "an obiter cannot take the place of the ratio. Judges are not oracles". These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point. Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him (1) ; 456 and to confine such observations, even though expressed in broad terms, in the general compass of the question before him" unless the makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand. It may be noted that, in this case the Presidential order dated 3rd November, 1962, which came up for consideration before the Court,, was a conditional order, inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred by Articles 21 and 22, only if he was deprived of any such rights under the Defence of India Act, 1962 or any rule or order made under it. It was in the context of this Presidential order that the aforesaid observations were made by this Court. It is obvious that, on the terms of this Presidential order, if a person was deprived of his personal liberty otherwise than in accordance with the provisions of the Defence of India Act, 1962 or any rule or order made under it, his right to move the Court for enforcement of his right of personal liberty under Article 21 would not be barred by the Presidential order. That is why it was said in this case, that, if the detention is illegal for the reason that the mandatory provisions of the Defence of India Act,, 1962 or any rule or order made thereunder have been contravened or that the detention has been ordered mala fide, such a plea would not fall within the terms of the Presidential order and hence it would be outside the purview of article 359, clause (1). That is the only way in which these observations can and must be understood. It was pointed out by the House of Lords as far back as 1901 in Queen vs Leatham(l) "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but are governed and qualified by the particular facts in which such expressions are to be found. " This Court had also occasion to point out in the State of Orissa vs Sudhansu Sekhar Misra( ') that the observations in a judgment must be "only in the context of the question that arose for decision. " It would not be right, as observed by this Court in Madhav Rao vs Union of India (supra), "to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition on the law on a question" particularly "when the question did not even fall to be answered in that judgment". Here, in the present case, unlike the Presidential order dated 3rd November, 1962, which was a conditional order, the Presidential order dated 27th June, 1975 is, on the face of it. an unconditional one and as such there is a vital difference ill effect between the Presidential order dated 3rd November, 1962 and the present Presidential order. In fact, it appears that because of the interpretation and effect of the Presidential Order dated 3rd November, ]962 given in this case and the subsequent cases following it, the President deliberately and advisedly departed from the earlier precedent and (1) ; (2) ; 457 made the present Presidential order an unconditional one. These observations made in the context of a conditional Presidential order cannot, therefore, be read as laying down that a plea that an order of detention is not in accordance with the provisions of law or is mala fide is outside the purview of article 359" clause (1) and would not be barred even by an unconditional Presidential order such as the one we have in the present case. This distinguishing feature of Makhan Singh 's case. (supra) was. in fact highlighted and emphasised in the subsequent decision of this Court in A. Nambiar vs Chief Secretary.(1). There Gajendragadkar, C.J., stressed the conditional nature of the Presidential order dated 3rd November, 1962 and indicated that it was in view of the last clause of the Presidential Order, that the aforesaid observations were made by this Court in Makhan Singh 's case. The learned Chief Justice explained the position in the following words . "In Makhan Singh Tarsikka vs The State of Punjab a Special Bench of this Court has had occasion to consider the effect of the Proclamation of Emergency issued by the President and the Presidential order with which we are concerned in the present writ petitions. this Court took the precaution of pointing out that as a result of the issue of the 1 Proclamation of Emergency and the Presidential order, a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it was pointed out that if a detenu contends that the operative provisions of the Defence of India ordinance under which he is detained suffer from the vice of excessive delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential order, because, in terms, it is not a plea which is relateable to the fundamental rights specified in the said order. Let us refer to two other pleas which may not fall within the purview of the Presidential Order. If the detenu, who is detained under an order passed under Rule 30(1) (b), contends that the said order has been passed by a delegate outside the authority conferred on him by the appropriate Government under section 40 of the Defence of India Act, or it has been exercised, inconsistently with the conditions prescribed in that behalf. , a preliminary bar against the competence or the detenu 's petition cannot be raised under the Presidential order, because the last clause of the Presidential order would not cover such a petition, and there is no doubt that unless the case falls under the last clause of the Presidential order, the bar created by it cannot be successfully invoked against cl decided. Therefore, our conclusion is that the learned Additional Solicitor General is not justified in contending that the present petitions are incompetent under article 32 because of the Presidential Order. The petitioners contend that the relevant Rule under which the (1) 458 impugned orders of detention have been passed, is invalid on grounds other than those based on articles 14, 19, 21 and 22" and if that plea is well founded, the last clause of the presidential Order is not satisfied and the bar created by it suspending the citizens ' fundamental rights under Articles 14, 21 and 22 cannot be pressed into service." These observations, and particularly the portions underlined by me, clearly show that it was because of the conditional nature of the Presidential Order that the view was taken that if a detenue contents that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf", that is, it is not in accordance with the provisions of law, such a plea would not be barred at the threshold by the Presidential order. The conditional nature of the Presidential order was also stressed by this Court in State of Maharashtra vs Prabhakar Pandurang Sangzgiri(1) where this Court, speaking through Subba Rao, J., pointed out that in view of the last cause of the Presidential order, "if a person was deprived of his personal liberty nor under the Act or a rule or order made thereunder, but in contravention thereof, his right to move the said courts", that is the High Court and the Supreme Court "in that regard would not be suspended '. lt was then contended on behalf of the detenus that in any event the right of personal liberty is a natural right which inheres in every one from the moment of his birth and this right can always be enforced by the detenus under article 226 by a writ "for any other purpose" and the Presidential order does not operate as a bar. When, in answer to this contention the Union of India and the State Governments relied on High Holiness Kesavananda Bharati Sripadagalavaru vs State of. Kerala,(2) the detenus urged that Kesavanand Bharati 's case (supra) did not say that there is no natural right inhering in a person, but all that it said was that natural rights do not stand in the way of amendment of the Constitution. Kesavanand Bharati 's case (supra) according to the detenus, did not negative the existence and enforceability of natural rights. But this contention of the detenus is clearly belied by the observation from the judgments of at last seven of the judges who decided Kesavanand Bharati 's case (supra). Ray, C. J. said at pages 419 of the Report: "Fundamental rights are conferred by the Constitution. There are no natural rights under our Constitution. " Palekar, J., also said at page 594 of the Report: "The so called natural rights have in course of time lost their utility as such in the fast changing world and are recognised in modern political constitutions only to the extent that organised society is able to respect them." So also Khanna, J. said at page 703 of the Report: " the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the State. It is up to the State to incorporate natural rights, or such (1) [1966] I section C. R. 702. (2) [1963] Supp. section C. R. 1. 459 of them as are deemed essential, and subject to such limitations as are considered appropriate, in the constitution of the laws made by it. But independently of the constitution and the laws of the State, natural rights can have no legal sanction and cannot be enforced. " Mathew, J., too, spoke to the same effect when he said at page 814 of the Report: 'Although called 'rights ', they are not per se enforceable in courts unless recognised by the positive law of a State". Beg, J. also discounted the theory of natural rights at pages 881 and 882 of the Report and Dwivedi, J. Observed at page 910 of the Report that to regard fundamental rights as natural rights overlooks the fact that some of These rights did not exist before the Constitution and "were begotten by our specific national experience". Chandrachud, J., was equally emphatic in saying at pages 975 and 976 of the Report that "There is intrinsic evidence in Part III of the Constitution to show that the theory. Of natural rights was not recognised by our constitution makers The natural theory stands, by and large, repudiated today The belief is now widely held that natural rights have no other than political value". It may be pointed out that Subba Rao, J., also in l. C. GolakNath & Ors vs Slate of Punjab(1) at page 789 of the Report rejected the theory of natural rights independent and apart from fundamental rights in Part III. He said: '. Fundamental rights are the modern name for what have been traditionally known as natural rights". There is, therefore, no scope for the contention that even if the enforcement of the Fundamental right conferred by Article 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law. I may also refer to one other argument advanced on behalf of the detenus that in any event the right not to be deprived of personal liberty except by authority of law is a statutory right which can be enforced despite the Presidential order suspending enforcement of the right of personal liberty guaranteed under Article 21. I agree and there can be no doubt about it that if the positive law of the State decrees that no person shall be deprived of his personal liberty except according to the procedure prescribed by law, the enforcement of such statutory right would not be barred by the Presidential order. But 1 am afraid, the premise on which this argument is founded is incorrect. There is no legislation in which country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law. On the contrary, section 18 of the enacts that no person in respect of whom an order of detention is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law. if any. The Indian Panel Code in section 342 undoubtedly makes it penal to wrongfully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law. But it can hardly be said on that acount that section 342 of the Indian Penal Code confers a right of personal liberty. The utmost that can be said is that this section proceeds on a recognition of the right of personal (1) ; 460 liberty enacted in Article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision. Then I must refer to one other contention of the detenus and that is that the remedy under Article 226 can be invoked not only for the purpose of enforcement of the fundamental rights, but also "for any other purpose". These words greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finds that the detention of a person is illegal. It is not necessary for this purpose that the court should be moved by the detenu. It is sufficient if it is moved by any person affected by the order of detention. When it is so moved and it examines the legality of the order of detention, it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality. The remedy of habeas corpus is a remedy in public law and hence it cannot be excluded by suspension of enforcement of the right of an individual. This contention of the detenus does appear, at first sight, to be quite attractive, but I am afraid, it is not well founded. It fails to take into account the substance of the matter. When an applicant moves the High Court for a writ of habeas corpus, he challenges the legality of the order of detention on the ground that it is not in accordance with law. That challenge proceeds on the basis that the executive cannot deprive a person of his personal liberty except by authority of law and that is why the order of detention is bad. But once it is held that the obligation of the executive not to deprive a person of his personal liberty except in accordance with law is to be found only in Article 21 and no where else, it must follow necessarily that, in challenging the legality of the detention, what the applicant claims is that there is infraction by the executive of the right of persona] liberty conferred under Article 21 and that immediately attracts the applicability of the Presidential order. If we look at the substance of the matter and analyse what is it exactly that the High Court is invited to do, it will be clear that what the applicant wants the High Court to do is to examine whether the executive has carried out the obligation imposed upon it by Article 21 not to deprive a person of his persona] liberty except according to the procedure prescribed by law and if it finds that the executive has failed to comply with this obligation, then to strike down the order of detention. That is precisely what is not permitted to be done by the Presidential order, for it plainly amounts to enforcement of the right of personal liberty conferred by Article 21. The words "any other purpose" cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order. It is necessary to point out that article 359 clause (1) and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful. There can be no doubt that the executive is bound to act in accordance with law and cannot that the command of law. The executive cannot also act to the detriment of a person without authority of law or except in accordance with law. If the executive takes any action which is not supported by law or is 461 contrary to law, its action would be unlawful. This unlawful characteristic of the action is not obliterated by the Presidential order issued under article 359 clause (1). Article 359, clause (1) and the Presidential Order issued under it do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power of the executive so as to permit it to go beyond what is sanctioned by law They merely suspend the right of a person to move any court for redress against the unlawful action of the executive, if his claim involves enforcement of any of the fundamental rights specified in the Presidential order. This is a position akin in some respects to that in the United States when the privilege of the writ of habeas corpus is suspended under article l, Placitium 9, clause (2) of the United States Constitution and in Great Britain when the Habeas Corpus Suspension Act is passed. It must inevitably follow from this position that as soon as the emergency comes to an end and the Presidential order ceases lo be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law. It will be clear from what is stated above that whilst a Presidential order issued under Article 359, clause (1) is in operation, the rule of law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights specified in the Presidential order. This would be obvious if we consider what would be the position under the criminal law. If the executive detains a person contrary to law or shoots him dead without justifying circumstances, it would clearly be an offence of wrongful confinement in one case and murder in the other, punishable under the relevant provisions of the Indian Penal Code, unless the case falls within the protective mantle of section 76 or 79 and the officer who is responsible for the offence would be liable to be prosecuted, if there is no procedural bar built by the Code of Criminal Procedure against the initiation of such prosecution. The Presidential order suspending the enforcement of Article 21 would not bar such a prosecution and the remedy under the Indian Penal Code would be very much available. The offence of wrongful confinement or murder is an offence against the society and any one can set the criminal law in motion for punishment of the offender. When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches a prosecution for such offence, he cannot be said to be enforcing the fundamental right of the detenu or the murdered man under Article 21 so as to attract the inhibition of the Presidential order. So also, if a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential order issued under Article 359, clause(1). Take for example the class of cases of detention where no declaration has been made under sub sections (2) and (3) of section 16A. This category would cover cases where orders of detention have been passed 462 prior to June 25, 1975, because in such cases no declaration under subsections (2) or (3) of section 16A is contemplated and it would also cover the rather exceptional cases where orders of detention have been made after 25th June, 1975 without a declaration under sub section (2) or sub section (3) of section 16A. Sections 8 to 12 would continue to apply in such cases and consequently the detaining authority would be under an obligation to refer the case of the detenu to the Advisory Board and if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the detenu, the State Government would be bound to revoke the detention order and release the detenu. 'That is the plain requirement of sub section (2) of section. Now? suppose that in such a case the State Government fails to revoke the detention order and release the detenu in breach of its statutory or obligation under sub section (2) of section 12. Can the detenu not enforce this statutory obligation by filing a petition for writ of mandamus, The answer must obviously be: he can. When he files such a petition for a writ of mandamus, he would be enforcing his statutory right under sub section (2) of section 12 and the enforcement of such statutory right would not be barred by a Presidential order specifying Article 21. T he Presidential order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is not complaining of absence of legal authority in the matter of deprivation of his personal liberty. I may also refer by way of another illustration to section 57 of the Code of Criminal Procedure Code, 1973. This section provides that no police officer shall retain in custody a person arrested without warrant for a longer period than under all the circumstances of case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate 's court. There is clearly a legal injunction enacted by this section requiring a police officer not to detain an arrested person in custody for a period longer than 24 hours without obtaining a special order of a magistrate and to release him on the expiration of such period of 24 hours, if in the meantime such special order is not obtained. If, in a given case, an arrested person is detained in custody by the police officer for a period longer than 24 hours without obtaining an order of a magistrate, can he not apply to the magistrate that he should be directed to be released by the police officer under section 57 ? Would such an application be barred by a Presidential order specifying article 21? I do not think so. When the arrested person makes such an application, he seeks to enforce a statutory obligation imposed on the police officer and a statutory right created in his favour by section 57 and that would not be barred, because what is suspended by a Presidential order specifying article 21 is the right to move the court for enforcement of the fundamental right conferred by that Article and not the right to move the court for enforcement of the statutory right to be released granted under section 57. I may take still another example to illustrate the point I am making. Take a case where an order of detention has been made without a declaration under subsection (2) or sub section (3) of section 16A). 463 Sections 8 to 12 would admittedly apply in such a case and under section 8, A the detaining authority would be bound to communicate to the detenu the grounds on which the order of detention has been made and to afford him the earliest opportunity of making a representation to the appropriate government. If, in a given case, the detaining authority declines to furnish the grounds of detention to the detenu or to afford him an opportunity of making a representation, in violation of the statutory right conferred on him under section 8, can be detenu not enforce this statutory right by filing a petition for a writ of mandamus against the detaining authority ? Would it be any answer to such an application that the enforcement of the fundamental right conferred by article 22, clause (5) has been suspended by the Presidential order? The answer is plainly: No. There are two rights which the detenu has in this connection: one is the fundamental right conferred by article 22, clause (5) and the other is the statutory right conferred by art 22. Though the contention of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. The 'theory of reflection ' which found favour with the Kerala High Court in Fathima Beebi vs M. K. Ravindranathan(l) is clearly erroneous. I the right conferred under section 8 were ;1 reflection of the fundamental right conferred by Article 22, clause (S) as the Kerala High Court would have us believe, the removal of the fundamental right under Article 22, clause (S), which is the object reflected, must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection. But even if Article 22 clause (S) were deleted from the Constitution, section 8 would still remain on the statute book until repealed by the legislature. The Presidential order would not, therefore, bar enforcement of the right conferred by section 8. To my mind, it is clear that if a petition or other proceeding in court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential order. I may also point out that, in the present case, if I had taken the view that there is. independently and apart from Article 21, a distinct and separate right not to be deprived of personal liberty except according to law, I would have held, without the slightest hesitation, that the Presidential order suspending enforcement of the fundamental right conferred by Article 21 does not have the effect of suspending enforcement or this distinct and separate legal right. But since I have come to the conclusion, for reasons already discussed, that there is no such distinct and separate right of personal liberty apart from and existing side by side with Article 21, it must be held that when a detenu claims that his detention is not under the Act or in accordance with it, he seeks to enforce the fundamental right conferred by Article 21 and that is barred by the Presidential order. Of course, this does not mean that whenever a petition for a writ of habeas corpus comes before the Court, it must be rejected straightaway without even looking at the averments made in it. The Court would have to consider whether the bar of the Presidential Order is attracted and for that purpose, the Court would have to see whether the order of detention is one made by an authority empowered to pass (I) 464 such an order under the Act; if it is not, it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21. On this view in regard to the interpretation of the constitutional provision, it is unnecesasry to go into the question of construction and validity of section 18 of the Act. It was strongly urged upon us that if we take the view that the Presidential order bars the right of a person to move a court even when his detention is otherwise than in accordance with law, there would be no remedy against illegal detention. That would encourage the executive to disregard the law and exercise arbitrary powers of arrest. The result would be so ran the argument that the citizen would be at the mercy of the executive: every one would be living in a state of constant apprehension that he might at any time be arrested and detained: personal liberty would be at an end and our cherished values destroyed. Should we accept a construction with such fearful consequences was the question posed before us. An impassioned appeal was made to us to save personal liberty against illegal encroachments 'l by the executive. We were exhorted to listen to the voice of judicial conscience as if judicial conscience were a blithe spirit like Shelley 's Skylark free to sing and soar without any compulsions. I do not think I can allow myself to be deflected by such considerations from arriving at what I consider to be the correct construction of the constitutional provision. The apprehensions and fears voiced on behalf of the detenus may not altogether be ruled out. It impossible that when past powers are vested in the executive, the exercise of which is immune from judicial scrutiny, they may sometimes be abuse d and innocent persons may be consigned to temporary detention. But merely because power may sometimes be abused, it is no ground for denying the existence of the power. All power is likely to be abused. That is inseparable from the nature of human institutions. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer its legitimate end and at the same time incapable of mischief. In the last analysis a great deal must depend on the wisdom and honesty,, integrity ' and character of those who are incharge of administration and the existence of enlightened and alert public opinion. It was Lord Wright who said in Liversidge vs Siglov Anderson (supra) that "the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. " It is true that, if, in a situation of emergency, judicial scrutiny into legality of detention is held to be barred by a Presidential order specifying Article 21, illegalities might conceivably be committed by the executive in exercise of the power of detention and unlawful detentions might be made against which there would be no possibility of redress. The danger may not be dismissed as utterly imaginary, but even so, the fact remains that when there is crisis situation arising out of an emergency, it is necessary to best the Government with extra ordinary powers in order to enable it to overcome such crisis situation and restore normal conditions. Even Harold Laski conceded in his article on "Civil Liberties in Great Britain in Wartime that "the necessity of concentrating immense power in a Government waging total war is 465 beyond discussion" and what he said there regarding a Government A waging total war must apply equally in relation to a Government engaged in meeting internal subversion or disturbance, for the two stand on the same footing, so far as our Constitution is concerned. Now, when vast powers are conferred on the executive and judicial scrutiny into the legality of exercise of such powers is excluded" it is not unlikely that illegalities might be committed by the executive in its efforts to deal with the crisis situation. Dicey, in his "Introduction to the study of Law of the Constitution" frankly admits that it is "almost certain that, when the suspension of the Habeas Corpus Act makes it possible for the Government to keep suspected persons in a prison for a length of time without bringing them to trial, a smaller or greater number of unlawful acts will be committed, if not be the members of Ministry themselves, it any rate by their agents. " But howsoever unfortunate this situation might be, that cannot be helped. The Constitution permits judicial scrutiny to be barred during times of emergency, because it holds that when a crisis arises in the life of the nation, the rights of individuals must be postponed to considerations of State and national safety must override any other considerations. I may add that there is nothing very unusual in this situation because? as already pointed out above,, such a situation is contemplate even in countries like the United States of America and Great Britain which are regarded as bastions of democracy. But at the same time it must be remembered by the executive that, because judicial scrutiny for the time being is excluded, its responsibility in the exercise of the power of detention is all the greater. The executive is under an added obligation to take care to see that it acts within the four corner of the law and its actions are beyond reproach. It must guard against misuse or abuse of power, for, though such misuse or abuse may yield short term gains, it is a lesson of history which should never be forgotten that ultimately means have a habit of swallowing up ends. Before I leave this question, I may point out that, in taking the view 1 have, T am not unaware of the prime importance of the rule of law which, since the dawn of political history, I both in India of Brahadaranyaka Uunishad and Greece of Aristotle, has tamed arbitrary exercise of power by the government and constitutes one of the basic tenets of constitutionalism. I am not unmindful of the famous words of Lord Atkin in his powerful dissent in Liversidge vs Anderson(supra) that "amid the clash of arms and much more so in a situation of emergency arising from threat of internal subversion "laws are not silent. They may be changed, but they speak the same language in war and in peace". I am also conscious and if I may once again quote the words of that great libertarian Judge "Judges are no respector of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law". But at the same time it cant be overlooked that, in the ultimate analysis, the protection of persona] liberty and the supremacy of law which sustains it must be governed by the constitution itself. The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law, he shall not be entitled to enforce his right of personal liberty, whilst a Presidential order under 3 2 833SCI/76 466 Article 359, clause (l) specifying Article 21 is in force I have to give effect to it. Sitting as l do, as a Judge under the constitution, I cannot ignore the plain and emphatic concerned of the Constitution or what I may consider to be necessary to meet the end of justice. It is said that law has the feminine capacity to tempt each devotee to find his own image in her bosom. No One escapes entirely. Some yield badly, some with sophistication. Only a few more or less effectively resist. I have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at is altar, in order to secure it, protect it and preserve it. But I do not think it would be right for me W allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the constitution a construction which its language cannot reasonably bear. I cannot assume to myself the role of Plato 's Philosopher king 's in order to render what I consider ideal justice between the citizen and the State. After all" the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support ,and its final resting place. It is in this spirit of humility and obedience to the Constitution and driven by judicial compulsion, that I have come to the conclusion that the Presidential order dated 27th June, 1975 bars maintainability of a writ petition for habeas corpus there an order of detention is challenged on the ground that it is mala fide or not under the Act or not in compliance with it. On the view I have taken in regard to the answer to be given to the first question, it would be unnecessary to consider the second question, but since the second question has been debated fully and elaborate arguments have been l advanced before us touching not only the interpretation but also the validity of sub section (9) (a) of section 16A, I think it will be desirable if I pronounce my opinion on this question as well. But before I proceed to do sot, I may make it clear once again that though this question is framed in general terms and so framed it invites the Court to consider the area of judicial security in a petition for a writ of habeas corpus, it is not really necessary to embark on a consideration of this issue, since it was conceded by the learned Attorney General, and in my opinion rightly, that the area of judicial scrutiny remains the same as laid down in the decision of this Court, subject only to such diminution or curtailment as may be made by sub section (9)(a) of section 16A. The learned Additional Solicitor General , who argued this question on behalf of the Union of India, took us through various decisions of English courts on the issue as to what is the nature of the jurisdiction which the Courts on the issue as to what is the nature of the jurisdiction which the Court exercises in a petition for a writ of habeas corpus, and what is the manner in which such jurisdiction must be exercised. it is not necessary for the purpose because the practice in our country in regard to the exercise of this jurisdiction , as it has evolved over the years as a result of the decisions of this Court, is a little different from that prevailing in England. This court has never insisted on strict rules of pleading in cases involving the liberty of a person nor placed undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a 467 detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating The order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has any occasions point out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the Act. Vide Naranjan Singh vs State of Madhya pradesh,(1) Saikh hanif, Gudma Majhi & Kamal Saha vs State of West Bengal (2) and Dulal Roy vs The District Magistrate, Burdwan ors.(3) . It has also been insisted by this court that, in answer to the Rule, the detaining authority must place all the relevant facts before the Court which would show that the detention is in accordance with the detention is in accordance the provisions of the Act. It would be no argument on the part of the detaining authority to say that particular ground is not taken in the petition . vide Nizamuddin vs The State of West Bengal .(4) Once the Rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scruplously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam vs State of West Bengal (5) and Khudiram Das vs state of West Bengal & Ors.(6) This practice marks a slight departure from that obtaining in England but it has been adopted by this court in view of the peculiar socio economic conditions prevailing in the country. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make our a prima facie case in support of those grounds before a rule can be issued on he petition and when the Rule is issued, the detaining authority should not be liable to do any thing more than just meet the specific grounds of challenge put forward by the petitioner in the petition. Of course, I must make it clear that where an order of detention is challenged as mala fide, a clear and specific averment to that effect would have to be made in the petition and in the absence of such averment, the court would not entertain the plea of mala fide. The petitioner would have to make out a prima facie case of mala fide before the detaining authority can be called upon to meet it. Whether a prima facie case has been made out or not would depend on the particular facts and circumstances of each case, but the test would be whether the prima facie case made out is of such a nature that the Court feels that it requires investigation. The Court would then investigate and decide the question of mala fide on the basis of the material which may be placed before it by both parties. 468 What is the area of judicial scrutiny in a petition for a writ of habeas corpus has been laid down by this Court is numerous decisions. It is not necessary to refer to all these decisions, since there is one recent decision, namely, Khudiram Das vs State of West Bengal (supra) where the entire law on the subject has been reviewed by a Bench of four judges! of this Court. There, the effect of the previous decisions has been considered and the law has been summarised at pages 843 to 845 of the Report in a judgement delivered by me on behalf of the Court. I have carefully listened to the most elaborate arguments advanced before us in this case and even after giving my most serious consideration to them, I still adhere to all that I said in Khudiram Das 's case (supra). I maintain that the subjective satisfaction of the detaining authority is liable to be subjected to judicial scrutiny on the grounds enumerated by me in Khudiram Das 's case (supra) and the decision in Khudiram Das 's case(supra) lays down the correct law on the subject. The only question is: how far and to what extent sub section (9) (a) of section 16A has encroached upon this area of judicial scrutiny and whether it is a valid piece of legislation. Now the first question that arises for consideration is as to what is the correct interpretation of section 16A, sub section (9) (a). That sub section reads as follows: "(9) Notwithstanding anything contained in any other law or any rule having the force of law (a) the grounds on which all order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section (2) or sub section (3) and any in formation or materials on which such grounds or a declaration under sub section (2) or a declaration or confirmation under sub section (3) or the non revocation under sub section (4) of a declaration arc based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public inter est to disclose and save as otherwise provided in this Act, no on shall communicate or disclose any such ground, information or material or any document containing such ground, information or material;" the argument urged on behalf of the detenus was that sub section (9) (a) of section 16A should be read down and construed so as not to exclude the power of the High Court in the exercise of its jurisdiction under Article 226 to call for the grounds, information and materials on which the order of detention is made and the declaration under sub section (2) is based with a view to satisfying itself as regards the legality of the detention. It was pointed out on behalf of the detenus that, unlike section 54 of Indian Income tax Act, l 922 and section 14 of the , sub section (9) (a) of section 16A does not include any reference to a court and it is clear that it is not directed against the Court. Reliance was also placed on behalf of the detenus on the following statement of the law in Wigmore on Evidence (3rd ed.) vol. 8 at page 801, Article 2379: "Any statute declaring in general terms that official records are confidential should 469 be liberally construed to have an implied exception for disclosure when A needed in court of justice, and reference was also made to the decision of the English Court in Lee vs Burrell(1) in support of the proposition that in a statutory provision, like sub section (9) (a) of section 16A, the Court must read an implied exception in favour of the Court and particularly the High Court exercising constitutional Function under Article 226. It was also stressed on behalf of the detenus that if a wider construction is placed on sub section (9) (a) of section l 6A taking within its sweep the High Court exercising jurisdiction under Article 226, that sub section would be rendered void as offending Article 226 and hence the narrower construction must be preferred which excludes the High Court from the purview of the sub section. This contention, attractive though it may seem because it has the merit of saving judicial scrutiny from being rendered ineffectual and illusory, is not justified by the plain language of sub section (9) (a) of section 16A and hence, despite these weighty considerations which have been pointed out on behalf of the detenus, I find myself unable to accept it. It is true that sub section (9) (a) of section 16A does not specifically refer to any court. It does not say in so many terms, as did section 54 of the Indian lncome tax Act, 1922, that no court shall require any officer to produce before it the grounds, information and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based, nor does it contain any provision, like section 14 of the that no court shall allow any statement to be made or any evidence to be given of such grounds, information and materials. But there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds, information and materials before a court. It says that the grounds, information and materials on which the order of detention is made or the declaration under subsection (2) or sub section (3) is based "shall be treated as confidential and shall be deemed to refer to matters of State and to be against public interest to disclose". There is clearly an echo here of section 123 of the Indian Evidence Act. That section is intended to prevent disclosure in a court of "unpublished official records relating to and affairs of State" and likewise, sub section (9) (a) of section 16A must also be held to be designed to achieve the same end, namely prevent, inter alia, disclosure in a court. The words "shall be treated as confidential" and " shall be deemed to be against the public interest to disclose" are very significant. If they are to have any meaning at all, they must be construed as prohibiting disclosure even to a Court. How can the grounds, information and materials referred to in this sub section remain 'confidential if they can be required to be produced before a court? How can they be permitted to be disclosed to a court when the legislature says in so many terms that it would be against the public interest to disclose them. Even if the court holds its sittings in camera, there would be a real danger Of leakage and that might, in a given case, jeopardize national security and weaken the efforts towards meeting the crisis situation arising (1) 170 English Reports ]402. 470 out of the emergency. Vide observations in the speech of Lord Wright at page 266 in Liversidge 's case (supra) . Sub section (9) (a) of section 16A cannot, therefore, be read down as to imply an exception in favour of disclosure to a court. But then it was contended on behalf of the detenus that if, on a proper construction of its language, sub section (9) (a) of sectio 16A precludes the High Court ill exercise of its jurisdiction under Article 226, from calling for the production of the grounds, ill formation and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based, it would impede the exercise of its constitutional power by the High Court and make i t virtually ineffective and hence it would be void as offending Article 226. This contention requires serious consideration. Prima facie it appears to be formidable, but for reasons which. I shall immediately proceed to state, I do not think it is well founded. There can be no doubt that Article 226 is a constitutional pro vision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the fundamental right conferred by Article 21 and also for any other purpose. The High Court has, therefore, constitutional power to examine the legality of detention and for that purpose, to inquire and determine whether the detention is in accordance with the provisions of law. Now, obviously this being a constitutional power, it cannot be taken away or abridged by a legislative enactment. If there is any legislative provision which obstructs of retards the exercise of this constitutional power, it would be void. There arc several decisions of this Court which recognise and lay down this proposition. It was said by this Court in one of its early decisions in Hari Vishnu Kamath vs Syed Ahemad Ishaque & ors.(1) that the jurisdiction under Article 226 having been conferred by the Constitution, limitation cannot be placed on it except by the Constitution itself So also n Durga Shankar Mehta vs Thakur Raghuraj singh & ors.(2) this Court, while considering the effect of section 105 of the Representation of the People Act, 1951 which gave finality to an order made by the Election Tribunal, observed that that section cannot "cut down and affect the overriding power which this Court can exercise in the matter of grant of special leave under Article 136`, and tile same rule was applied to Article 226 in Raj Krushna Bose vs Binoci Kanungo vs ors. where the Court held that section 105 cannot take away or whittle do the power of the High Court under Article 226. The same view was taken by this court in In re: The Kerala Education Bill, 1957(4) where section R. Das C. J. speaking on behalf of the Court said in relation to Article 226 that "No enactment of a State legislature can, as long as that Article stands. take away or abridge the jurisdiction and power conferred on the High Court by that Article. This Court in Prem Chand Garg vs Excise commissioner U P Allahabad actually struck down Rule 12 of order XXXV of the Supreme Court Rules which required the (1) [1955] 1 section R. 1104. (2) [1955] 1 section C. R. 267. (3) ; (4) [1959] section C. R. 995 (5) [1963] supp. 1 section C. R 885. 471 petitioner in a writ petition under Article 32 to furnish security for A the cost of the respondent, on the ground that it retarted or obstructed the assertion or vindication of the fundamental right guaranteed under Article 32 by imposing a pecuniary obligation on, the petitioner. The principle of this decision must equally apply in a case there the legislative provision impedes or obstruct the exercise of the constitutional power of the High Court under Article 226. It is, therefore, clear that if it can be shown that sub section (9) (a) of section 16A abridges or whittles down the constitutional power of the High Court under Article 226 or obstructs or retards its exercise, it would be valid as being in conflict with Article 226. Now, it is settled law that when a petition for writ of habeas corpus filed and a Rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scrupulously observed and the liberty of the detenu has not been taken away otherwise than in accordance with law, Vide Khudiram Das vs State of West Bengal (supra). The Court may also for the purpose of satisfying itself as regards the legality of detention, call for the record of the case relating to the detention and look into it. That is what the Court did in Biren Dutta & ors vs Chief Com missioner of Tripura & Anr.(l) There, an interim order was made by this Court "directing that the Chief Secretary to the Tripura Administration shall forthwith transmit to this Court the original file in respect of the detenus concerned" since the Court wanted to satisfy itself that the Minister or the Secretary or the Administrator had reviewed the cases of the detenus and arrived at a decision that their detention should be continued. So also in M. M. Damnoo vs J & K State(2) this Court required the State Government to produce the file confining the grounds of detention so that the Court could satisfy itself That "the grounds on which the detenu has been detained have relevance to the security of the State". It would, therefore, be seen that if there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the Court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under Article 226 and would be void as offending that Article. This was the basis on which section 14 of the The Preventive detention Act, 1950 was struck down by this court in A K Gopalan 's case (supra). That section prohibited the disclosure of the grounds of detention communicated to the person detained and the representation made by him against the order of detention and barred the court from allowing such disclosure to be made except for purposes of a prosecution for such disclosure. It was held by this Court in fact by all the judges who participated in the decision that this section was void as it contravene(l inter alia Article 32. Kanta, C. J. Observed at page 130 of the Report in a passage of which certain portions have been underlined by me for emphasis: (1) ; i (2) ; 472 "By that section the Court is prevented (except) for the purpose of punishment for such disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from tile production of the proceedings or report of the advisory board which may be declared confidential. It is clear than if this provision is permitted to stand, the Court can have nominate rial before it to determine whether the grounds are sufficient or not. I do not mean whether the grounds are sufficient or not. It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in section 12(l)(a). " Patanjali Sastri, J.,also observed to the same effect at page 217 of the Report: "If the grounds are too vague to enable him to take any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to his under article 32. These rights and remedies, the petitioner submits, cannot be effectively exercised, if he is prevented on pain of prosecution, from disclosing the grounds to the Court. There is great force in this contention The argument (of the Attorney General) overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide. An examination of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22(5) and article 32 is thereby rendered nugatory. It follows that section 14 contravents the provisions of article 22 (S) and article 32 in so far is it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or . the representation made by him against the order of detention, and prevents the Court from examining them for the purpose aforesaid. and to that extent it must be held under article 13 (2) to be void." (emphasis supplied). And so did the other learned Judges. It is clear from what they said that inasmuch as section 14 prohibited the disclosure of the grounds of detention and prevented the Court from looking at 473 Them for the purpose of deciding whether the detention is legal, it A was violative of Article 32 which conferred a fundamental right on a detenu to move this Court for impugning the legality of his detention. The same view was taken by a Constitution Bench of this Court in M. M. Damnoo vs J. & K. State (supra). In fact, the observations of Kania, C. J. in A. K. Gopalan 's case (supra) which I have reproduced above, were quoted with approval in this decision. The petitioner in this case challenged the legality of his detention by the State of Jammu & Kashmir on several grounds. One of the grounds was that the proviso to section 8 of the Jammu & Kashmir was void as it conflicted with section 103 of the Constitution of Jammu & Kashmir. Section 103 was in the same term as Article 226 and it conferred power on the High Court of Jammu & Kashmir to issue after alia a writ of habeas corpus Section 8 of the required the detaining authority to communicate to the detenu the grounds on which the order of detention was made, but the proviso to that section dispensed with the requirement in case of "any person detained with a view to preventing him from acting in any manner pre judicial to the security of the State if the authority making the order directs that the person detained may be informed that it would be against the public interest to communicate to him the grounds on which his detention has been made". The argument of the petitioner was that the proviso to section 8 of the was violative of section 103, since it debarred the High Court and this Court from calling for the grounds of detention and thus made it virtually impossible for the High Court and this Court to examine the legality of the detention. This Court agreed that there would have been some force in the contention of the petitioner, if the High Court and this Court were prevented from calling upon the State Government to produce the grounds of detention, but it pointed out that the proviso to section 8 was not ultra vires "because the proviso and the Act do not bar the High Court and this Court from looking into the validity of the detention". This Court, after referring to the observations made by Kania, C.J. in A. K. Gopalan 's case (supra) in regard to section 14 of the said: "But fortunately there is no similar provision in this Act: and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to produce before it the grounds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law. If it were not so, we would have difficulty in sustaining the proviso. " It will, therefore, be seen that prima facie this Court was of the view that if the proviso to section 8 had debarred the High Court and this Court from requiring the grounds of detention to be produced before them, it would have been difficult to sustain that proviso. The learned Additional Solicitor General, however, sought to distinguish ' these two decisions and contended that sub section (9) (a) 474 of section 16A merely enacts a rule of evidence and it cannot, therefore, be said to obstruct or retard the exercise of the constitutional power of the High Court under Article 226 so as to be in conflict with that Article. Now, there can be no doubt, although at one time in the course of his arguments Mr. Shanti Bhushan contended to the contrary, that a rule of evidence can always be enacted by the legislature for the purpose of regulating the proceedings before the High Court under Article 226. A rule of evidence merely determines what shall be regarded as relevant and admissible material for the purpose of enabling the Court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the Court and it cannot, in the circumstances, he violative of Article 226. But in order that it should not fall foul of Article 226, it must be a genuine rule of evidence. If in the guise of enacting a rule of evidence, the legislature in effect and substance disables and impedes the High Court from effectively exercising its constitutional power under Article 226, such an enactment would be void. It will be colourable exercise of legislative power. The legislature cannot be permitted to violate a constitutional provision by employing an indirect method If a legislative provision, though in form and outward appearance a rule of evidence, is in substance and reality something different, obstructing or impeding the exercise of the . jurisdiction of the High Court under Article 226, the form in which the legislative provision is clothed would not save it from condemnation. Let us, therefore, examine whether sub section (9) (a) of section 16A enacts a genuine rule of evidence or it is a colourable piece of legislation in the garb of a rule of evidence. If it is the former it would be valid; but if it is latter, it would be an indirect and covert infringement of Article 226 and hence void. Now, it is well settled that in order to determine the true character of a legislative provision, we must have regard to the substance of the provision and not its form. We must examine the effect of the provision and not be misled by the method and manner adopted or the phraseology employed. Sub section (9) (a) of section 16A is in form and outward appearance a rule of evidence which says that the grounds. information and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based shall be treated as confidential and shall be deemed to refer to matter of State and be against the public interest to disclose. But in substance and effect, is it a genuine rule of evidence ? The argument on behalf of the detenus was that it is only a legislative device adopted by the legislature for the purpose of excluding the grounds, information and materials from the scrutiny of the Court and thereby making it virtually impossible for High Court to examine the legality of the detention and grant relief to the detenu. If the veil is removed, contended the detenus, the position is no different from that obtaining in A. K. Gopalan 's case (supra) where section 14 of the was struck down as constituting a direct assault on Article 226. It was pointed out that, in every case of detention, the Grounds, information and materials would not necessarily refer to, matters of State and be against the public interest to disclose. Since, even order 475 of detention purported to be made under section 3 are brought within the purview of sub section (9)(a) of section 16A, the grounds, information and materials in cases of such detention may be wholly unrelated to the objects and purposes set out in section 3 and in that event, they would mostly have nothing to do with matters of State and it may not be possible to say that their disclosure would injure public interest. But even so, sub section (9)(a) of section 16A surrounds such grounds, information and materials with the veil of secrecy and, the use the words of Mahajan, J. in A. K. gopalan 's case (supra), places "an iron curtain around them". This sub section, according to detenus, compels the Court to shut its eyes to reality and presume by a legal fiction that in every case, whatever be the actuality and many cases the actuality may be otherwise the grounds, information and materials shall be deemed to refer to matters of State and shall be against that public interest to disclose. This contention of the detenus is undoubtedly very plausible and it caused anxiety to me t on deeper consideration, I think it cannot be sustained. It is significant to note that sub section (9)(a) of section 16A is a provision enacted to meet the emergency declared under the Proclamations dated 3rd December, 1971 and 25th June, 1975. Vide subjection (1) of section 16A. It comes into operation only when there a declaration made under sub section (2) or sub section (3) that the detention of the person concerned is necessary for dealing effective with the emergency. The condition precedent to the applicability of sub section is that there should be a declaration under sub section (2) or sub section (3) in respect of the person detained. It may also be noted that though the words or purported to be made were added after the words "an order of detention is made" in the sub section by the Maintenance of Internal Security (Amendment) Act, 1976, no such or similar words were added in relation to the declaration in under sub section (2) or sub section (3). Sub section (9) (a) of section 16A, therefore, assumes a valid declaration under subsection (2) or sub section (3) and it is only when such a declaration i been made, that sub section (9) (a) of section 16A applies or n other words it is only in cases where a person is detained in order deal effectively with the emergency that the disclosure of the grounds , information and materials is prohibited by sub section (9) (a) of section 16A. I have already pointed out how emergency can create a crisis situation imperilling the existence of constitutional democracy and jeopardizing the functioning of the social and political machine. It is, therefore, reasonable to assume that where a person is detained is order to deal effectively with the emergency, the grounds, information and materials on which the order of detention is made or the declaration under sub section (2) or sub section (3) is based would. and large, belong to a class of documents referring to matters of State which it would be against public interest to disclose. What was observed by two of the Law Lords in Liversidge 's case (supra) would be applicable in such a case. Viscount Maugham said at page 221 of the Report. " it is obvious that in many cases he will be acting 476 on information of the most confidential character, which could not be communicated to the person detained or disclosed in court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature," and Lord Wright also observed to the same effect at page 266 of the Report: "In these cases full legal evidence or proof is impossible, even if the Secretary does not claim that disclosure is against the public interest, a claim which must necessarily be made in practically every case, and a claim which a judge necessarily has to admit." In view of the fact that the detention is made in order to deal effectively with the emergency, the grounds, information and materials would in most cases be confidential and if a claim of` privilege were made under section 123 of the Indian Evidence act, it would almost invariably be held justified. The Legislature, therefore, taking into account the privileged character of the grounds, information and materials in the generality of cases, enacted sub section (9) (a) of section 16A laying down a rule that the grounds, information and materials shall be deemed to refer to matters of State which it would be injurious to public interest to disclose, instead of leaving it to the discretion of the detaining authority to make a claim of privilege in each individual case and the court to decide it. The rule enacted in sub section (9) (a) of section 16A bears close analogy to a rule of conclusive presumption and in the circumstances, it must be regarded as a genuine rule of evidence. I may make it clear that if the grounds, information and materials were not, by and large, of such a character as to fall within the class of documents relating to matters of State which it would be injurious to public interest to disclose, I would have found it impossible to sustain this statutory provision as a genuine rule of evidence. If the grounds, information and materials have no relation to matters of State or they cannot possibly be of such a character that their disclosure would injure public interest, tha Legislature cannot, by merely employing a legal fiction, deem them to refer to matters of State which it would be against public interest to disclose and thereby exclude them from the judicial ken. That would not be a genuine rule of evidence: it would be a colourable legislative device a fraudulent exercise of power. There can be no blanket ban on disclosure of the grounds, information and materials to the High Court or this Court, irrespective of their true character. That was the reason why section 14 of the was struck down by this Court in A. R. Gopalan 's case (supra) and this Court said in M. M. Damnoo 's case (supra) that if the proviso to section 8 had debarred the High Court and this Court from calling for the grounds of detention and looking into them, it would have been difficult to sustain that proviso. But here, on account of the declaration under sub section (2) or sub section (3), which, as I said above, must be a valid declaration in order to attract the applicability of sub section (9) (a) of section 16A, the grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in the sub section genuinely partakes of the character 477 of a rule of evidence. It may be pointed out that if the declaration A under sub section (2) or sub section (3) is invalid sub section (9) (a) of section 16A will not be attracted and the grounds, information and materials on which the order of detention is made would not be privileged under that sub section. I am, therefore, of the view that sub section (9) (a) of section 16A enacts a genuine rule of evidence an it does not detract from or affect the jurisdiction of the High Court under Article 226 and hence it cannot be successfully assailed as invalid. I accordingly answer the first question by saying that the Presidential under dated June 27, 1975 bars maintainability of a petition for a writ of habeas corpus where an order of detention is challenged on the ground that it is vitiated by Mala fides, legal or factual, or is based on extraneous considerations or is not under the Act or is not in compliance with it. So far as the second question is concerned, I do not think there is any warrant for reading down sub section (9) (a) of section 16A so as to imply an exception in favour of disclosure to the Court, and, on the interpretation placed by me on that provision, I hold that it does not constitute an encroachment on the constitutional jurisdiction of the High Court under Article 226 and is accordingly not void. In the circumstances, I allow the appeals and set aside the judgments of the High Courts impugned in the appeals. ORDER By majority In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration. Section 16A(9) of the is constitutionally valid; 3. The appeals are accepted. The judgments are set aside; 4. The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals.

174 In exercise of the powers conferred by Clause (1) of article 352 of the Constitution The President of India, by proclamation dated December 23, 1971 declared that a grave emergency exists whereby the security of India is threatened by external aggression and the Maintenance of Internal Security Act (Act 26 of 1971), 1971 was published on July 2 1971, for effectively dealing with the emergency. On November 16, 1974, the President of India, in exercise of the powers conferred by Clause (1) of article 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3(1)(c) of the (as amended by ordinance ll of 1974) for the enforcement of the rights conferred by Articles 14, 21 and Clauses (4) (5), (6) and (7) of Article 22 of the Constitution; and (b) All proceedings pending in any court or the enforcement of any of the aforesaid rights with respect to all orders of detention made under the said section 3(1)(c) shall remain suspended for a period of six months from the date of issue of the order. Or the period during which the proclamation of emergency issued under Clause ll) of article 352 of the Constitution of India on December 3, 1971, is in force, whichever period expires earlier. the order stood extended to the whole of the territory of India. On June 20, 1975, the President of India, amended the above order by substituting 12 months for '6 months ' in the order. On June 25, 1975, the President, in exercise of his powers conferred by Clause (2) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances. On June 27, 1975, in exercise of powers conferred by Clause (1) of article 359 the President declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Act. 352 of the Constitution on December 3, 1971, and on June 25, 1975, are both in. force. The Presidential order of June 27, 1975, further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under Clause (1) of article 359 of the Constitution. on June 29, l 975, by another order, the President made the ordinance of June 27, 1975, applicable to the State of Jammu and Kashmir as well. On September 25, 1975, the last paragraph in the Presidential order dated June 27 1975, was omitted. The President promulgated the amending ordinances No. i and 7 of 1975, and replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act introducing a new section 16A, and . giving a deemed effect to section 7 of the Act as on from June 25, 1975, while the rest having a deemed effect from June 29, 1975. By the same Act a new section 18 was also inserted with effect from June 25, 1975. By the Constitution (Thirty eighth Amendment) Act, 1975, Articles 123, 213, 239(b), 352, 356, 359 and 368 were amended. Clauses (4) and (5) were added in article 352 of the Constitution. Broadly stated, the Thirty eighth Con Constitution (Amendment) Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any . question in any court on any ground. The power conferred on the President by article 352 shall include the power. to issue different proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a proclamation already issued by the President By Constitution Thirty Eight Amendment Act l '1975 new Clause (1A) was also added after Clause (1) of Article 359. The Constitution Thirty ninth Amendment Act was published on August 10 1975, amending Articles 71, 329 and 329(A) and added Entries after Entry 86 in the 9th Schedule and the (Act 26 of 1971) 1971 as item 92 in the said Schedule. 175 On October 17, 1975, on ordinance 16 of 1975 was issued making further amendments ill section 16A of the maintenance of internal Security Act introducing sub Clause (8) and (9) to section 16A. On November 16, 1975 ordinance 22 of 1975 was issued making certain amendments in the Maintenance of Internal security Act inserting also sub section 2A ill section 16A. All the amendments made by the (ordinance were given retrospective effect for the purpose of validating all Acts done previously. 'The said ordinances were published as the Maintenance of Internal Security (Amendment) Act 1976 (Act 14 of 1976) on Janurary ' '5, 1976. The respondents detained under section 3(IA)(ii) read with section 3(2) of the maintenance of Internal Security Act (Act 26 of 1971 j as amended by the (Amendment Act 39 of 1975), 1975 challenged in several High Courts, the vires of the ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative in law and prayed for (a) the setting aside of the said order and (b) for directing their release forthwith. In come cases, they challenged the validity of the Thirty eight and I thirty ninth constitution Amendment Acts. When these petitions came up for hearing, the appellant raised the preliminary objection to the maintainability on the ground that in asking For l release by the issuance of a writ of habeas Corpus. the respondents were, in substance, claiming that they have been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under. article 21 of the Constitution only and in view of the Presidential order dated June 27 1975, suspending the right to move for enforcement of the right conferred by that article, the petitions were liable to be dismissed at the threshold. While the High Courts of Andhra Pradesh, Kerala and Madras have upheld The preliminary objection, this contention did not find favour with the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi Karnataka, Madhya Pradesh, Punjab and Haryana respectively. 'I these High (courts broadly took the view that (a) despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as for example, by showing that the order, on the face of it, IS passed by an authority not empowered of pass it or it is not in exercise of the power delegated to the authority or that the power has been exercised in breach of the conditions prescribed in that behalf by the Act under which the order is passed, or that he order is not in strict conformity with the provisions of the Act. Some of these High Court have further held that the detenus can attack the order of detention on the ground that it is mala fide, as for example, by showing that the authority did not supply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations or that the authority was influenced by improper motives. The Nagpur Bench of the Bombay High Court read down section 16A(9) of the 1 implying an exception in favour of disclosure to the Court. The High Court did not decide about the validity of the Thirty eighth and Thirty ninth Constitution Amendment Acts. Accepting the States ' appeals, some by certificates granted by the High Court and some by special leave, the Court by majority (Khanna, J. dissenting), ^ HELD . (Per majority A.N. Ray C.J. M.H. Beg. Y.V. Chandrachud and P.N. Bhagwati JJ.) (1) In view of the Presidential Order. Dated June 27, 1975, under Clause (1) of article 359. no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order. Of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations. [477 E F]. (2) Section 16A(9) of the is constitutionally valid. [477 F] (3) Section 18 of the Maintenance of ' Internal Security Act, 1971 is not invalid. [240 A D, 342 F G, 414 D] 176 (4)Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State. [246 B] Per A. N Ray J In view of the Presidential order dated June 27, 1975, under Clause (1) of article 359, no person has locus standi to move writ petitions under article 226 of the Constitution before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male fide [245 H, 246 A] Article 21 is the sole repository of rights to life and personal liberty against a State. Any claim to a writ of hebeas corpus is enforcement of article 21 and . is, therefore, barred by the Presidential order. [246 B] Girindra Nath Banerjee v Birendra Nath Lal ILR 54 Cal. 727; Kinng emperor vs Shib Nath Banerjee 1972 Indian Appeals 241 and Makhan Singh vs State of Punjab [1964] (4) SCR 797 referred to. Scope of judicial reivew in emergency. In times of emergency the executive safeguards the life of the nation and, therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered. [219 B E] Liversidge vs Sir John Anderson ; Greene vs Secretary of State for Home Affairs ; Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura ; and Makhan Singh vs ," State of Punjab [1964] 4 SCR 797 followed. Queen vs Halliday Ex Parte Zadiq , referred. Liberty is confined and controlled by law, whether common law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged. [222 D, G] Zamora 's case [1916]2 Ac 107 and Liversidge vs Sir John Anderson ; , referred to. The vital distinction between articles 358 and 359 is that Art 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening article 19 during the operation of a Proclamation of emergency and the Executive can take action which The Executive is competent to take under such laws Article 358 does not suspend any Fundamental Right. While a proclamation of emergency is in operation the Presidential order under article 359(1) can suspend the enforcement of any or all Fundamental Rights. Article 359(1) also suspends any pending proceedings for the enforcement of such Fundamental Right or Rights. Another important distinction between the two Articles is that article 358 provides for indemnity. whereas Article 359(1) does not: Article 359(1A) is on the same lines as article 358, but Article 359(1A) includes all Fundamental Rights which may be mentioned in a Presidential order aud is, therefore, much wider than article 358 which includes article lg only. [223 E G] The purpose and object of article 359(1) is that the enforcement of any Fundamental Right mentioned in the Presidential order is barred or it remains suspended during the emergency. The scope of article 359(1) is not only to restrict the application of the Article to the legislative field. bet also to the acts of the Executive. The object of Article 359(1) is not only that the right 177 to move this Court only is barred but also the right to move any High Court The bar created by article 359(1) applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential order whether by way of an application under article 32 or by way of application under article 226. An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court. [223 H, 224 D] Shri Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura ; Makhan Singh vs State of Punjab [1964] 4 SCR 797 and Dr. Ram Manohar Lohia vs State of Bihar & ors. ; , applied. The argument that jurisdiction and powers of this Court under article 32 and of the High Courts under article 226 are virtually abolished by the Presidential order without any amendment of the Constitution is incorrect. No amendment to the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential order takes away the locus standi of the detenu to move any court for the enforcement of Fundamental Rights for the time being, the jurisdiction and powers of this Court and of the High Courts remain unaltered. [224 E F] Article 359(1) is not directed against any court, it is directed against an individual and deprives him of his locus standi. If courts will in spite of the Presidential order entertain the applications and allow the detenu to enforce to start or to continue proceedings or enforce Fundamental Rights, Article 359(1) will be nullified and rendered otiose. C D] Unlike the 1962 Presidential order, in the 1975 order, the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22. The Presidential order is, therefore, a bar at the threshold. [228 D E] Makhan Singh vs State of Punjab [1964] 4 SCR 797 and State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; , distinguished. There are no natural rights. Fundamental Rights in our Constitution are interpreted to be what is commonly said to be natural rights. [229 C D] H. H. Kesvananda Bharti Sripadagalavaru vs State of Kerala [1973] SUPP. I SCR 702. followed. Law means law enacted by the State. Law means positive State made law The phrase "Procedure established by law" in article 21 includes substantive and procedural law. A law providing for the procedure depriving a person of liberty must be a law made by statute. [229 D E] A K. Gopalan vs Stale of Madras ; ; P. D. Shamdasani & ors vs Central Bank of India Ltd. ; ; Smt. Vidya Verma through next friend R. V. section Mani vs Dr. Shiv Narain Verma ; , applied. There is no difference between the expression "except according to procedure established by law" in article 21 and the expression "save by the authority of law" in article 31(1) or the expression "except by authority of law" in article 265. It is incorrect to suggest that when article 21 was enacted, the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the constitutional mandate that personal liberty could not be taken except according to law. [232 B D] Part III of our Constitution confers Fundamental Rights in positive as well as negative language. A Fundamental Right couched Couched negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasize the immunity from State action as Fundamental Right. Fundamental Rights have the texture of Basic Human Rights. [229 G, 230 A B] State of Bihar. vs Maharaja Dhiraja Sir Kameshwar Singh of Dhrbhanga & Ors. at 988 989; A. K Gopalan vs State of Madras ; ; Rustom Cavasjee Cooper vs Union of India 571 and 576 to 578: Shambhu Nath Sarkar vs The State of West Bengal & Ors. [1974] 14 833SupCI/76 178 1 SCR; Haradahan Saha & Anr. vs State of West Bengal ; and Khudiram Das .v State of West Bengal & ors. ; , referred to. Article 21 is our Rule of Law regarding life and liberty. No other Rule of Law can have separate existence as a distinct right. The negative language of Fundamental Right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantees of the individual to that fundamental Right. Limitation and guarantee are complementary. The limitation of State action embodied in a Fundamental Right couched in a negative form is the measure of the protection of the individual. [230 C D] Rustom Cavasji Cooper vs Union of India , applied. Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in article 19(1)(d). [230 C C] Kharak Singh vs State of U.P. and ors. [1964] 1 SCR 332 and Rustom Cavasjee Cooper v Union of India ; , referred to. If any right existed before the commencement of the Constitution and the same right with its content is conferred by Part III as a Fundamental Right the source of that right is in Part III and not in any pre existing right. Such pre constitutional rights have been elevated in Part III as Fundamental Rights. If there is a pre constitution right which is expressly embodied as a Fundamental Right under our Constitution, the common law right has no separate existence Under Our Constitution. If there be any right other than and more extensive than the Fundamental Right in Part III, such right may continue to exist under article 372. [230 F H] Dhirubha Devi Singh Gohil vs State of Bombay , referred to. B. Shankara Rao Badami and ors. vs State of Mysore and Anr. ; @ 11 13, applied. Apart from the remedy under the common law of torts, by way of suit for false imprisonment and claim for damages, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution. Even this remedy, after the amendment of section 491 of the Code of criminal Procedure became a statutory right in the nature of a habeas corpus. The provisions of section 491 of the Criminal Procedure Code have been repealed by Act II of 1974 as being superfluous in view of article 226. [231 C D] Waghela Rajsanji vs Sheik Masludin and ors. 14 I.A. 89 1) 96. Satish Chandra Chakravarti vs Ram Dayal De I.L.R. @ 407 10, 425 426. Baboo S/o Thakur Dhobi vs Mst. Subanshi w/o Mangal Dhobi AIR 1942 Nagpur 99; Makhan Singh vs State of Punjab [1964] 4 SCR 797; District Magistrate Trivandrum vs K. C. Mammen Mappillai I.L.R. ; Matthen vs District Magistrate Trivandrum L.R. 66 I.A. 222. Girindranath Banerjee vs Birendranath Pal ILR and King Emperor vs Sibnath Banerjee 72 1.A. 241, referred to. There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under article 372. Law in article 21 will include all post constitutional statute, law including and by virtue of article 372 all pre constitutional statute law, including the I.P.C. and the Cr. P.C. [231 F G] The present appeals do not touch any aspect of article 20. Article 20 is a constitutional mandate to the judiciary and article 21 is a constitutional mandate to the Executive. The expression "no person shall be prosecuted for the same offence more than once" in article 20 would apply only to the executive. It is 179 incorrect to say that "State" in article 12 will also include the Judiciary and article 20 is enforceable against the Judiciary in respect of illegal orders. [232 E F, G H] Makhan Singh vs State of Punjab [1964] 4 SCR 797 and Narayan Singh vs State of Delhi and ors. ; not applicable. Articles 256, 265 and 361 have no relevance to displace the proposition that article 21 is the repository of rights to life and liberty. Nor does an appeal in a criminal proceedings have anything to do with article 21. [233 C D] Garikapatti Veerayya vs N. Subbiah Choudhury ; and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. vs Ram Tahal Ramnand and ors. ; , referred to. The right arising from a decree is not a Fundamental Right and, therefore, will not be prima facie covered by a Presidential order under article 359(1) [233 G] Fundamental Rights including the right to personal liberty are conferred by the Constitution. Any pre constitution rights which are included in article 21 do not after the Constitution remain in existence which can be enforced, if article 21 is suspended If it be assumed that there was any pre constitutional right to personal liberty included in article 21 which continued to exist as a distinct and separate right then article 359(1) will be an exercise in futility. [234 A B] Makhan Singh vs State of Punjab explained. The theory of eclipse is untenable. The theory of eclipse refers to pre constitutional laws which were inconsistent with Fundamental Rights. By reason of article 13(1) such laws did not became void but became devoid of legal force. Such laws became eclipsed for the time being. The theory of clipse has no relevance to the suspension of the enforcement of fundamental Rights under article 359(1). The constitutional provisions conferring Fundamental Rights cannot be said to be inconsistent with article 13(1). [234 B D] P. D. Shamdasani vs Central Bank of India Ltd. ; and Smt. Vidya Verma through next friend R. V. section Mani vs Dr. Shiv Narain Verma ; , reiterated. The Act in the present case is valid law and it has laid down procedure of applying the law. The validity of the Act has not been challenged and cannot be challenged. The Legislature has competence to make the law. The procedure, therefore, cannot be challenged because article 21 and 22 cannot be enforced. 'The suggestion that the power of the Executive is widened is equally untenable. [235 E F] The fact that section 491 of the Criminal Procedure Code has been abolished in he new Code establishes that the pre existing right was embodied as a Fundamental Right in the Constitution. The right to personal liberty became identified with Fundamental Right to personal liberty under article 21. [236 A] The Presidential orders does not alter or suspend any law. The rule of law is not a mere catchword or incantation. The certainty of law is one of the elements in the concept of the rule of law. The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature. [236 B C] It is not correct to argue that if pre existing law is merged in article 21, there will be conflict in the Article 372. The expression "law in force" in article 372 cannot include laws which are incorporated in the Constitution, viz. in Part III. The expression "law" in Articles 19(1) and 21 takes in the statute law. [235 B] The Presidential order under article 359(1) is not a law. The order does not repeal any law either. The contention that permanent law cannot be repealed by temporary law is misplaced. [235 C] The entire concept in article 21 is against Executive action. There is no question of infringement of Fundamental Right under article 21 where the detention 180 complained of is by a private person and not by a State or under the authority or orders of a State. [235 D] The Executive cannot detain a person otherwise than under valid legislation. The suspension of any Fundamental Right does not affect this rule of the Constitution. Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law. [237 A F] Rai Sahib Ram Jawaya Kapur & ors. vs The State of Punjab ; MP. State vs Bharat Singh ; ; Dy. Collector vs Ibrahim & Co. Bennet Coleman & Co vs Union of India ; and Meenakshi Mills vs Union of India , discussed and distinguished. The Constitution is the mandate. The Constitution is the rule of law. No one can arise above the rule of law. The suspension of right to enforce Fundamental Rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of law other than the constitutional rule of law. 'There cannot be any pre constitution or post constitution rule of law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency. [224 B, 238 D E] Eshugbayi Eleko vs Officer Administering the Govt. Of Nigeria ; and Christie and Anr. vs Leachinsky ; not applicable. The expression "for any other purpose" in article 226 means for any purpose other than the enforcement of Fundamental Rights. A petition for habeas corpus by any person under article 226 necessarily invokes a question whether the detention is legal or illegal. An executive action if challenged to be ultravires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action. [239 D E] The expression "purported to be made under section 3 of the Act" in section 18 will include an Executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is mala fide. [240 A B] Hari Ram Singh vs The Crown Bhagchand Dagadusa vs The Secretary of State for India L.R. 54 I.A. 338 @ 352; Albert West Meade vs The King AIR 1948 P.C. 156 at 157 59; Animistic vs Foreign Compensation etc. ; at 212, 213 and 237 and Dakshina Ranjan Ghosh vs Omar Chand Oswal I.L.R. SO Cal. 992 at 995 1003, applied. Poona Municipal Corporation vs D. N. Deodhar ; ; Kala Bhandar vs Municipal Committee and Indore Municipality vs Niyamultulla AIR 1971 SC 97 and Joseph vs Joseph not applicable. There is no question of excessive delegation in section 18 which lays down the law. To contend that section 18 applies only to post detention challenge is wrong. Section 18 applies to all orders of detention. Section 18 of is only an illustration of the Act by the officers authorised by the Act. [240 C E] Section 16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or the Court to ask for the grounds of detention. [246 C] Materials and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosures would impair the proper functioning of Public service and administration. [242 D] Liversidge vs John Anderson ; at 221, 253, 254, 266, 267, 279, 280 and Roger 's case @ 400, 401, 405, applied. 181 Legislature has enacted 5. 16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification instead of forcing the State to claim in individual cases privilege under sections 123, 162 of the Evidence Act or under article 22(6) of the Constitution. [242 E F] Section 16A cannot be said to be an amendment to article 226. The jurisdiction to issue writs is neither abrogated nor abridged. Section 16A(9) enacts provisions analogous to a conclusive proof of presumption. Such a provision is a genuine rule of evidence. It is in the nature of an explanation to sections 123 and 162 of the Evidence Act. Section 16A(9) is a rule of evidence. When the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise of adverse inference against the authority. [242 G H] Section 16A(9) cannot be read implying an exception in form of disclosure to the Court. Such disclosure to the Court alone and not to the detenu will introduce something unknown to judicial procedure and will bring in an element of arbitrariness and preclude both the parties from representing their respective cases. The view of the detaining authority is not to be substituted by the view of the court. [243 A C] State of Bombay v Atma Ram Sridhar Vaidya ; ; Shiban Lal Saksena vs State of Uttar Pradesh and ors. ; ; Rameshwar Shaw vs District Magistrate Burdwan and Anr. ; ; Jaichand Lal vs W. Bengal [1966] Supp. SCR 464 and Dr. Ram Manohar Lohia vs State of Bihar [1966] I SCR 709, referred to. The theory of good return mentioned in the English decisions is based on the language of Habeas Corpus Act and the Rules of the Supreme Court of England. The practice of our Court is different. [243 C D] M. M. Damnoo vs J. K. State ; and A. K. Gopalan vs State of Madras ; , distinguished. It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority. Section 16A of the Act contains definite indications of implied exclusion of judicial review on the allegations of mala fide. The reason why section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power. The production of the order which is duly authenticated constitutes a peremptory answer to the challenge. [243 G H, 244 A, 245 B] In view of the inability of the court to grant any relief on the basis whether order of detention is the result of malice or ill will, the detention of malafides is not only ineffective but also untenable. [244 DE] Lawrence loachim Joseph D 's Souza vs The State of Bombay ; @ 392, 393; Smith vs East Elloc Rural District Council & ors. at 776 and Dr. Ram Manohar Lohia vs State of Bihar and ors. ; , referred to. A decision on a point not necessary for the purpose or which does not fall to be determined in that decision becomes obiter dictum. [227 F] Maharaja Dhiraja Madhav Rao Jivaji Rao Scindia Bahadur and 193 to 194, referred to. Per M. H. Beg, 1. A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it recording a purported satisfaction to detain the petitioner under the , which is operative either before or after its confirmation by the Government, is a 182 complete answer to a petition for a writ of habeas corpus. Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in habeas corpus proceedings. [371 G H, 372 A] The fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of all other laws. It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial functions though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention. The wider the sweep of the provisions of Articles 21 and 22 the more drastic must be the effect of suspending their enforcement. Suspension does not and cannot mean retention under a disguise. [312 F H] Marbury vs Madison [1803] I Cranch 137; A. K. Gopalan vs State of Madras ; @ p. 109, referred. The only Rule of Law which can be recognised by courts of our country is what is deducible from our Constitution itself. The Constitution is an embodiment of the highest "positive law" as well as the reflection of all the rules of natural or ethical or common law Lying behind it which can be recognised by courts. The spirit of law or the Rule of Law Cannot hover ominously around like some disembodied ghost serving as a substitute for the living Constitution. It has to be found always within and operating in harmony with and never outside or in conflict with what our Constitution enjoins. [313 A, D E] The most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts. [329 F] Under our constitutional jurisprudence courts cannot, during a constitutionally enjoined period of suspension of the enforceability of fundamental rights through courts, enforce hat may even be a Fundamental Right sought to be protected by Part III of the Constitution. [314 C D] The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions: firstly, its recognition by or under the Constitution as a right; and, secondly, possession of the vower of its enforcement by the judicial organs. Article 226 of the Constitution is not meant for futile and unenforceable declarations of right. The whole purpose of a writ of habeas corpus is to enforce a right to personal freedom after the declaration of the detention as illegal when it is so found upon investigation. Enforceability of rights, whether. they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs is governed solely by the terms of the written instrument in n Constitution such as ours. The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers. It is difficult to see any such scope when enforcement itself is suspended. [314 E F, 315 B C] What is suspended is really the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure. If the enforcement of a right to be free, resulting derivatively from both the constitutional and statutory provisions based on an infraction of the procedure. which is statutory in cases of preventive detention, is suspended, it is impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory. Such a view would introduce a ' distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential order of 1975. [315 F G] 183 If the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the courts will have nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them. [329 G] A court cannot. in exercise of any supposed inherent or implied or unspecified power, purport to enforce or, in substance enforce, a right the enforcement of which is suspended. To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly. [317 E F] [His Lordship felt that it was unnecessary to consider "any other purpose" in article 226 of the Constitution in view of the fact that each of detenus asked for a writ or habeas corpus and for no other kind of writs or orders.] The Constitution given unto themselves by the people, is legally supreme. A notional surrender by the people of India of control over their several or individual rights to a Sovereign Republic by means of a legally supreme Constitution only means that the Constitution is supreme and can confer rights and powers. One has to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms. A satisfactory explanation of the language of conferment used with reference to rights is that there has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of "licence" to all, which ends in the exploitation and oppression of the many weak by the few strong into the actuality of a freedom for all regulated by law or under the law applicable to all. [318 F H] Smt. Indira Nehru Gandhi vs Raj Narain [1976] 2 SCR referred to. Rules of natural justice, which are impliedly read into statutes from the nature of Functions imposed upon statutory authorities or bodies have sometimes been placed on the same footing as "Fundamental Rights of men which are directly and absolutely safeguarded" by written Constitutions. The implied rules of natural justice do not override the express terms of a statute. They are only implied because the functions which the statute imposes are presumed to be meant to be exercised in accordance with these rules, and therefore treated as though they were parts of enacted law. The principles of natural justice which are so implied must always hang, if one may so put it on pegs of statutory provisions or necessarily flow from them and have no independent existence. [319 G H, 320 A] State of Orissa vs Dr. Miss Binapani Dei & ors. ; , applied. Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other co extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights. [329 B] The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative. Or judicial organs (i e. Article 20) of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences. The intention was to exclude all other control or to make the Constitution, the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part m. [319 A C & 329 C] Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with article 19 practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be. In that sense, it could be viewed as, sub 184 stantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power. [329 D E] Taken by itself, article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State 's agents or officials although, read with other Articles, it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom. [329 F] Article 21 was only meant, on the face of it, to keep the exercise of executive power, in ordering deprivations of life or liberty, within the bounds of power prescribed by procedure established by legislation Article 21 furnishes the guarantee of "Lex", which is equated with statute law only, and not of "jus" or a judicial concept of what procedural law ought really to be. The whole idea in using this expression was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law which meant only statute law. According to well established canons of statutory construction, the express terms of "Lex" (assuming, of course, that the "Lex" is otherwise valid), prescribing procedure, will exclude "Jus" or judicial notions of "due process" or what the procedure. Ought to be. [321 H. 322 A C] A. K. Gopalan vs State of Madras ; referred to. The suggestion that 'jus", which has been deliberately excluded from the purview of "procedure established by law", can be introduced by courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other part of the Constitution, cannot be acceded to. [322 E F] R. C. Cooper vs Union of India ; , 578, distinguished. Neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution. They could not be, on any principle of law or justice or reason, virtually added to Part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights. [325 B D] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973] Supp. SCR @ 1. Satish Chandra Chakraworti vs Ram Dayal De ILR P @ 407 410, 425 and 426: Waghela Rajsanji vs Sheikh Masludin and ors. 14 Indian Appeals p. 89 and Baboo Seo Thakur Dhobi vs Mst. Subanshi w/o Mangal Dhobi, AIR 1942 Nagpur 99, referred to. Not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom. by implication, is covered by Article 21 of the Constitution. [328 E F] 1. C. Golaknath & ors. vs Sate of Punjab and Another Even if article 21 is not the sole repository of all personal freedom, it will be clear, that all aspects of freedom of person are meant to be covered by Articles 19, 21, and 22 of the Constitution. If the enforcement of these rights by Courts is suspended during the emergency, an inquiry by a court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile. [328 H, 329 A] A. K. Gopalan State of Madras ; and Kharak Singh vs State of UP & ors. [1964] I SCR 332, applied. The power to issue a writ is conferred upon courts exclusively by our Constitution All the powers of our courts flow from the Constitution which is the source of their jurisdiction. If any provision of the constitution authorises the 185 suspension of the right to obtain relief in any type of cases, the power of courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there. If they cannot issue writs of habeas corpus to enforce a right to personal freedom against executive authorities during tho emergency, the original nature of this writ issuing power comparable to a "prerogative" power cannot help the detenu. [330 G H] It is a well recognised principle of law that whatever could be formerly even said to be governed by a common law prerogative power becomes merged in the Constitution as soon as the Constitution takes it over and regulates that subject. [331 A] Principle in Attorney General vs De Keyser 's Royal Hotel Limited, ; @ 526 applied. If there is no enforceable right either arising under the Constitution or otherwise, it is useless to appeal to any general power of the court to issue a writ of habeas corpus. If the effect of suspension of the right to move the court for a writ of habeas corpus is that no inquiry can take place beyond finding out that the cause is one covered by the prohibitions mere possession of general power will not assist the detenu. [331 C D] If the right to enforce personal freedom through a writ of habeas corpus is suspended, it cannot be said that the enforcement can be restored by resorting to "any other purpose". That other purpose could not embrace defeating the effect of suspension of the enforcement of a constitutional guarantee and if held so would be making a mockery of the Constitution. [331 D E] Nothing in the nature of a writ of habeas corpus or any power of a High Court under article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution is suspended. [331 E F] Provision for preventive detention in itself aptly described as "jurisdiction of suspicion" is a departure from ordinary norms, and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature, with the object of preventing a greater dager to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty. [332 B C] Haradhan Saha & Anr. vs The State of West Bengal and ors. ; ; Khudiram Das vs State of West Bengal [1975] 2 SCR p.832 @ p. 842; State of Madras vs V.G. Row AIR 1952 SC 197 @ 200 and Rex vs Halliday ; @ 275, referred to. It is true that the Presidential order of 1975 like the Presidential order of 1962, does not suspend the general power of this Court under article 32 or the general powers of High Courts under article 226, bot the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order. Courts, even in habeas corpus proceedings, do not grant relief independent of the rights of the person deprived of liberty. If the locus standi of a detenu is suspended, no one car. claim to get his right enforced. , [338 E F] If a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice from the court, outside the provisions of the Act on the ground of personal malice of the detaining authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for, it may be possible to contend that it is not protected by the Presidential order of June 27, 1975, and by the provisions of article 359(1) of the Constitution at all. The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers. That is the almost utterly inconceivable situation or type of case which could still 186 be covered by the general power to issue writs of habeas corpus. The remedy by way of a writ of habeas corpus is more general than relief against official action. It lies even against illegal detentions by private persons although not under article 32 which is confined to enforcement of Fundamental Rights. [339 A E] Shrimati Vidya Verma, though next friend R.V.S. Mandi vs Dr Shiv Narain Verma [1955] 2 SCR p. 983, referred to. Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: The maxim "omnia praeswumuntur rite esse actus" means that all official acts are presumed to have been rightly and regularly done. If the burden to displace that presumption is upon detenu, he cannot, in a habeas corpus petition under article 226 of the Constitution, ask the court to embark upon an inquiry, during the emergency, and allow him to lead evidence to rebut this presumption. To do so would be plainly to countenance a violation of the Constitutional mandate suspending the procedure. [340 A C] Eshughayi Eleko vs Officer Administering the Government of Nigeria & Anr. @ 670; Liversidge vs Sir John Anderson and Anr. [1942] A.C. p. 206 @ 217 and 219 and 273. Rex vs Secretary of State of Home Affairs, Ex parte Lees and Green vs Secretary of State of Home Affairs, @ 293, discussed. Decisions on what restraints should be put and on which persons during a national emergency, in the interests of national security, are matters of policy which are outside the sphere of judicial determination. [344 G] Liversidge vs Sir John Anderson ; and Rex vs Halliday Ex Parte Zadiq ; , referred to. Under our Constitution, there is no distinction between the effects of a declaration of emergency under article 352(1) whether the threat to the security of the State is from internal or external sources. Presidential declarations under article 352(1) and 359(1) of ' our Constitution are immune from challenge in courts even when the emergency is over. A noticeable feature of our Constitutions is that, whereas the consequences given in article 358 as a result of a Proclamation under article 352(1) are automatic, Presidential orders under Article 359(1) may have differing consequence, from emergency to emergency depending upon the terms of the Presidential orders involved. And then, Article 359(1A) made operative retrospectively by the 38th Constitutional amendment of 1st August 1975, makes it clear that both the legislative and executive organs of the State are freed for the duration of the emergency from the limits imposed by Part III of the Constitution. [348 A D] The striking differences in the terms of the two Presidential orders are: (1) The Presidential order of 1962 did not specify Article 14 of the Constitution, but article 14, guaranteeing equality before the law and equal protection of laws to all persons in India, is mentioned in the 1975 order. This does make some difference between the intentions behind and effects of ' the two Presidential orders. [352 B C] (ii) The President Order of 1962 expressly hedges the suspension of the specified Fundamental Rights with the condition, with regard to deprivations covered by Article 21 and 22 of the Constitution that the detenu should be deprived of his rights "under the Defence of India Act, 1962 or any rules or order made thereunder". In other words. On the terms of the 1962 Presidential Order, the courts were under a duty to see whether a deprivation satisfies these conditions or not. They could adjudicate upon the question whether a detention was "under " the Act or a rule "made thereunder". On the other hand, the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon "any person including a foreigner" to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution. The Courts are. therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory 187 requirements. They will have to be content with compliance shown with forms of the law. [352 C E] (iii) Presidential order of 1962 makes no mention of pending proceedings, but. the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein. This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of courts in which proceedings were actually pending. the inference from this feature also is that all similar proceedings in future will similarly be affected. [352 E F] There can be no doubt whatsoever that the Presidential order of June 27, 1975, was a part of a unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under article 226 in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on January 25. 1976, making section 16A(9) operative retrospectively from June 25, 1975. [352 F H] There is no doubt that the object of the Presidential (order of June '27, 1975, by suspending the enforcement of the specified rights, was to affect the powers of courts to afford relief to those the enforcement of whose rights was suspended. This was within the purview of Article 359(1). Hence objections that powers of the courts under. article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases. [353 A B] The term Rule of Law is hot a magic wand which can he waved to dispel every difficulty. It is not an Aladin 's lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have It can only mean what the law in a particular State or country is and what it enjoins. This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country. It could not be rigid, unchanging, and immutable like the proverbial laws of the Medes and Persians. It cannot be like some brooding omnipotence in the skies. Its meaning cannot be what anyone wants to make it. It has to be, for each particular situation. indicated by the courts as to what it means. [353 F H, 354 A] The Rule of Law includes the concept of determination by courts, of the question whether an impugned executive action is within the bounds of law. It pre supposes, firstly, the existence of a fixed or identifiable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act. and secondly the power of the courts to test the action by reference to the rule. [354 E F] Even in emergencies provided the power of the court to so test the legality of some executive act is not curtailed, courts will apply the test ' of legality "if the person aggrieved brings the action in the competent court". But, if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the ground of executive action or their relationship with the power to act, it is no use appalling to this particular concept of the Rule of Law. It is just inapplicable to the situation which arises here. Such a situation is governed by the emergency provisions of the Constitution. [354 F H] Youngs Town Sheet & Tube Co. vs Sawyer, ; , 655 and Chief Settlement Commissioner, rehabilitation Department Punjab & Ors. etc. vs Om Prakash & Ors. ; @ [354 F H] Whereas article 358, by its own force. suspends the guarantees of article 19, Article 359(1) has the effect of suspending the operation of specified Funda 188 mental Rights. If, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended it is impossible to say that there is a Rule of Law found there which is available for the courts to apply during the emergency to test the legality of executive action. [355 A C] Mohd. Yaqab etc. vs The State of Jammu & Kashmir [1968] 2 SCR p. 227 @ 234, referred to. The suggestion that a common law remedy by way of writ of habeas corpus exists, even after section 491 was introduced in the. Criminal Procedure Code in 1923, is incorrect. The sweep of article 359(1) of the Constitution taking in the jurisdiction of "any court" is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundamental Right. [355 D E] Pleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order of June 27, 1975 read with the amended provisions of section 16A(9) of the Act. In a case in which the officer purporting to detain had in fact, not been invested at all with any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain. [357 C E] Makhan Singh vs State of Punjab [1964] 4 SCR 797 @ 821 822 and 5. Pratap Singh vs State of Punjab ; , referred to. The suspension of enforcement of specified Fundamental Rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act, in official capacities which they could and do hold. A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf, could be enforced even during the current emergency. [357 G] The presumption of validity of a duly authenticated order or an officer authorised to pass it is conclusive in habeas corpus proceedings during the current emergency. By means of a differently phrased Presidential order of June 17, 1975 and the amendments in the Act, introducing rather drastic provisions of section 16A of the Act, the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State. [358 B, 361 B C] State of Madhya Pradesh and Anr. vs Thakur Bharat Singh ; State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr. ; Dr. Ram Manohar Lohia vs State of Bihar and ors. ; ; K. Anandan Nembiar and Anr. vs Chief Secretary, Government of Madras and ors. ; ; Durga Das Dhirali vs Union of India and ors ; Jai Lal vs State of West Bengal [1966] Supp. SCR p. 4, 64, discussed and distinguished. lt is very difficult to see the bearing of any such doctrine that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few doubts unresolved. [361 C D] If an order of preventive detention is not quasi judicial, as it cannot be because of the impossibility of applying any objective standards to the need for it in a particular case, there could be no question of violating any principle of Separation of Powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the emergency. [361 H. 352 A] Rai Sahib Ram Jawaya Kapur and ors. vs The State of Punjab, , referred to. Means of redress in cases such as those of mistaken identity or misapprehension of facts or of detenus due to false and malicous reports circulated by enemies are still open to detenu by approaching executive authorities. There 189 is no bar against that. What is hot possible is to secure a release by an order in habeas corpus proceedings after taking the courts behind a duly authenticated prima facie good return. [366 B C] If the meaning of the emergency provisions in our Constitution and the provisions of ' the Act is clearly that what lies in the executive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness the courts cannot arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess. [362 H] It does not follow from a removal of the normal judicial superitendence even over questions of vires, of detention orders, which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face of the return itself, it is demonstrated in a court of law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention The intention behind emergency provisions and of the Act is that although such, executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly supervised and controlled by the hierarchy of executive authorities themselves. It enhances the powers and therefore, the responsibilities of the Executive. [363 F H] In actual practice, the grounds supplied always operate as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in. The reasonableness of the detention because the justiciable issue because it related to the decision. It is doubtful whether this could be said to be an object of preventive detention authorised by the Constitution and embodied in the Act. [334 D E] The object of the amending Acts 39 of 1975 and 14 of 1976 was to affect the manner in which jurisdiction of courts in considering claims for reliefs by detenus oh petitions for writs of habeas courts was being exercised so that the only available means that has been developed for such cases by the courts, that is to say, the scrutiny of grounds supplied under section 8 of the Maintenance. Of Internal Security Act may be removed from the judicial armoury, for the duration of emergency. [336 C D] Prabhu Dayal Deorah etc. vs District Magistrate Kamrup and ors. ; , referred to. The contention that section 16A(9) affects the jurisdiction of High Courts under article 226 which an order under article 359(1) could not do, is untenable. A Presidential Order which prevents a claim for the enforcement of a Fundamental Right from being advanced in a court, during the period of an emergency could possibly be said not to be intended to affect the exercise of jurisdiction of courts at all, is not correct. [336 F G] That section 16A(9) amounts to a general legislative declaration in place of judicial decisions which courts had themselves to give after considering, on the facts of each case, whether article 226 could be applied, is also not acceptable. the result of section 16A(9) to be valid would be to leave to the presumption of correctness of an order under section 3 of the Act untouched by any investigation relating to its correctness. Now if this be the object and effect of The amendment, it could not be said to go beyond it to rebut a presumption of legality and validity or an order under section 3 of the Act, if prima facie case is made out. [336 G H, 337 A] Observation [The same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as "conclusive proof" that the requirements of section 3 have been fulfilled. But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists, this may have left the question in doubt, whether courts could call upon the detaining authorities 190 to produce the grounds. Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions]. [337 A B] Section 16A(9) makes it impossible for courts to investigate questions relating to the existence or absence of bona fides at least in proceeding under An. 226, It is clear that the validity of section 16A(9) cannot be challenged on the ground, of any violation of Part III of ' the Constitution in view of the provisions of article 359(1)(A). [353 C D] A challenge to the validity of section 16A(9) based either on the submission on hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well founded. There is no such strict separation of power under our Constitution No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers. [365 E F] Rai Sahib Ram Jawaya Kapur and ors vs State of Punjab , referred to. Section 16A(9) imposes a bar which cannot be overcome in habeas corpus proceedings during the emergency. In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than merely ordinary rebuttable presumption for purposes of proceedings under article 226 of the Constitution. [367 F G] [His Lordship felt it unnecessary to consider the validity of section 16A(9) if it was to be applied at a time not covered by the emergency, or whether it should, be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of malice in, fact and for reasons completely outside the purview of the Act itself. [337 C D] Section 16 of the Act seems to leave open a remedy by way of suit for Damages for wrongful imprisonment in a possible case of what may be called "malice in fact". In the cases for habeas corpus, proceedings under article 226 of the Constitution where "malice in fact" could not be investigated. as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty, a Fundamental Right which cannot be enforced during the Emergency. [337 G H] Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura ; @ 450, followed. Even the issue that the detention order is vitiated by "malice in fact ' will not be justifiable in habeas corpus proceedings during the emergency although it may be in an ordinary suit which is not filed for enforcing a Fundamental Right but for other reliefs. The question of bona fides seems to be left open for decision by such suits on the language of section 16 of the Act itself. [368 D E] In the case of preventive detention, placing the burden upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopted in a case of deprivation of personal liberty, and asking the executive authorities to satisfy such a requirement, in accordance with what has been called the principle in Eschugbayi Eleko 's case; , @ 670, would be to nullify the effect of the suspension of the enforceability of the procedural protection to the right of Personal freedom. To do so is really to take the Presidential order under Article 359(1) of the Constitution ineffective. [368 B C] No question of "malice in law" can arise in habeas corpus proceedings when such a protection is suspended. As regards the issue of "malico in fact" it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of which is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not 191 protected by the terms of section 16 of the Act. The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers. [1368 D E] Section 18, though unnecessary, appears to have been added by way of abundant caution. It cannot be assailed on the ground of violation of basic structure. [342 F G] The theory of basic structure oil the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with the constitutional provisions. The Constitution cannot have a base out away from the superstructure. Indeed, the emergency provisions could themselves be regarded as part of the basic structure of the Constitution. [366 E F] The theory of basic structure of the constitution cannot be considered as anything more than a part of a well recognised mode of constructing a document The Constitution like any other document has to be read and constructed as a whole. The theory was nothing more than a method of determining the intent behind the constitutional provisions it could not and did not build and add a new part to the Constitution. It cannot imply new tests outside he Constitution or be used to defeat constitutional provisions. [366 G, 367 A] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala, [1973] Supp SCR 1, applied. There is no provision in our Constitution for a declaration of Martial Law except article 34 of the Constitution which recognises the possibility of Martial Law in this country. There is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed". A Presidential order under article 359(1) of the Constitution would, ordinarily, have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country. The Presidential proclamations are meant generally to cover the country as a whole. Martial Law is generally of a locally restricted application. The conditions in which what is called "martial law" may prevail result in taking Military Courts of powers even to try offences: and, the ordinary or civil courts will not interfere with this special jurisdiction under extraordinary conditions. Such a taking over by Military courts is certainly outside the provisions of Alt. 359(1) of the Constitution taken by itself. It could perhaps fall under Presidential powers under Articles 53 and 73 read with article 355. [368 F H. 369 A C] Judicial proceedings in criminal courts not meant for the enforcement of Fundamental Rights, are not either at the initial or appellate or revisional stages, covered by the Presidential order of 1975. Habeas corpus petitions are not maintainable, in such cases since the prisoner is deemed to be in proper custody under orders of a court. [371 F G] Neither Article 136 nor Art 226 of the Constitutional is meant for the exercise of an advisory jurisdiction. Attempts to lay down the law in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions of article 136 and 226 respectively, but may result in misapplications of the law declared by courts to situations for which they were not intended at all. [306 D E]. Per Chandrachud, J. The order issued by the President on June 27, 1975, under Article 359(1) does not suspend the fundamental principle that all executive action must have the authority of law to support it. Nor does the Presidential order give to the executive a charter to disobey the laws made by the Parliament which is the supreme law making authority.[413 B C] The aforesaid Presidential order, however, deprives a person of his locus stand; to move any court, be it the Supreme Court or the High Court, for enforcement of his Fundamental Rights which are mentioned in the order 192 Such deprivation or suspension enures during the period that the proclamation of emergency is in force or for such shorter period as may be specified in the order. [413 C D] The dominant purpose of the present petitions is to obtain an order of release from detention by enforcing the right to personal liberty. The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed. The former plea is barred by reason of the Presidential order. The latter is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for. [413 E F] The Presidential order dated June 27, 1975, bars any investigation or inquiry into the question whether the order of detention is vitiated by mala fides, factual or legal, or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material [413 F G] Whether or not article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under article '226 for the release of a person detained under the , no relief by way of releasing the detenu can be granted because no person has a legal capacity to move any court to ask for such relief. The Presidential order takes away such legal capacity by including article 21 within it. The source of the right to personal liberty is immaterial because the words "conferred by" which occur in article 359(1) and in the Presidential order are not words of limitation. [413 G H, 414 A] The Presidential order does not bring about any amendment of article 226 and is not open to challenge on that ground. [414 B] The contention that article 226 which occurs in Chapter V, of the Constitution is an entrenched provision and, therefore, under article 368 no amendment can be made to article 226 without ratification by the Legislatures of not less than one half of the States is untenable. It is true that article 226 is in entrenched provision which cannot suffer an amendment except by Following the procedure prescribed by the proviso to article 368(2). But the presidential order is issued under the Constitution itself and if its true constitutional produces a certain results it cannot be said that some other Article of the Constitution stands thereby amended article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcement of Fundamental Rights mentioned. in the order shall be suspended. That may, in effect. affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus. But, that does not bring about any amendment of Article 226 within the meaning of article 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power. Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Article cannot amount to an amendment of the other. 1;385 G H, 386 A B] The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government, nor dos it bar the grant of relief other than or less than the release of the detenu from detention. [414 B C] Detention without trial is a serious on personal freedom but it bears the sanction of our Constitution. The "clear and present danger test" evolved by Justice Holmes in Schenck vs United States, may well be extended to cases where there is a threat of external aggression. [384 D E] The object of Art 359 is to confer wider powers on the President than the power merely to suspend the right to file a petition for the writ of habeas corpus. Article 359 aims at empowering the President to suspend the right to enforce all or any of the Fundamental Rights conferred be Part III. It is in order to achieve that object that Article 359 does not provide that the President may declare that the remedy by way of habeas corpus shall be suspended during emergency. Personal liberty is but one of the Fundamental Rights conferred by Part m and the writ of habeas corpus is neculiar to the enforcement of the 193 right to personal liberty and, therefore the suspension of the right to enforce the right conferred by article 21 means and implies the suspension of the right tc file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21. [384 G H, 385 A B] The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order. In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely take away the locus standi of a person to move these courts for the enforcement of certain Fundamental Rights during the operations of the Proclamation of Emergency. The drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being to deprive the individual concerned of his normal right to move the Supreme Court or the High Court for the enforcement of the Fundamental Rights conferred by Part III of the Constitution [386 C E] Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura ; , 451, referred to. The argument that the limited object of article 359(1) is to remove restrictions on the power of the Legislature so that during the operation of the Emergency it would be free to make laws in violation of the Fundamental Rights specified in the Presidential order loses sight of the distinction between the provisions of article 358 and article 359 (1A) on the one hand and of Art 359(1) on the other. Article 358, of ' its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the Executive to take action under a law which may thus violate article 19. Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency. Article 359(1) is wider in scope than article 358. In view of the language of article 359(1) and considering the distinction between it and the provisions of article 358, there is no justification for restricting the operation of article 359(1) as against laws made by the Legislatures in violation of the Fundamental Rights. [386 G H, 387 A E] Sree Mohan Choudhary vs The Chief Commissioner, Union Territory of Tripura ; and Makhan Singh vs State of Punjab [1964] 4 SCR 797. referred to. Article 359(1) is as much a basic feature of the Constitution as any other, and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore. Article 359(1) which is an emergency measure, must be construed consistently with that position. The argument of basic feature is wrong for yet another reason that article 359(1) does 'not provide that the Executive is free to disobey the laws made by the Legislature. To permit a challenge in a court of law to an order of detention, which is an Executive action, on the ground that the order violates ar Fundamental Right mentioned in the Presidential order, is to permit the detenu to enforce a Fundamental Right during emergency in manner plainly contrary to article 359(1). [388 E H, 389 A] All executive action which operates to the prejudice of any person must have the authority of law to support it. article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and other. It provides that so long as the Proclamation of Emergency subsists laws may be enacted and executive action may be taken ill pursuance of such laws, which if the provisions of article 19 were operative would have been invalid. Article 359(1) bars the enforcement of any Fundamental Right mentioned in the Presidential order, thereby rendering it incompetent for any person to complain of its violation, whether the violation is by the Legislature or by the Executive. [389 H, 390 A, 391 E F] State of Madhya Pradesh and Anr. vs Thakur Bharat Singh ; ; District Collector of Hyderabad & ors. vs M/s. Ibrahim & Co. etc. ; Bennett Coleman & Co. and ors. vs Union of India & ors. [1973] 833SCI/76 194 2 SCR 757, 773, 775 and Shree Meenakshi Mills Ltd. vs Union of India, , 405, 406 and 428, distinguished. The Rule of Law rejects the conception of the dual State in which governmental action is placed in a privileged position of immunity from control be. Such a notion is foreign to our basic constitutional concepts. [392 F] Chief Settlement Commissioner, Rehabilitation Department, Punjab and ors vs Om Parkash & ors. ; 660 661 and Eshugbayi Eleka vs Officer Administering the Government of Nigeria ; 670. distinguished. The Rule of Law argument like the "basic feature" argument is intractable. Emergency provisions contained in Part XVIII of the Constitution which are designed to protect the security of the State are as important as any other provision. Of the Constitution. The Rule of Law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent Rule of Law drowning in its effervescence the emergency provisions of the Constitution. [393 B D] Article 359(1) neither compels nor condones the breaches by the executive of the laws made by the Legislature. Such condonation is the function of an act of indemnity. [393 G] The object of empowering the President to issue an order under Alt. 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which seems totally devoid of meaning and purpose. Their is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched. This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency except to the extent to which the right is conferred by Part III of the Constitution. The existence of the right to personal liberty in the pre constitution period was surely known to the makers of the Constitution. [395 H, 396 A D] The right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less. That right along with certain other rights was elevated to the status of a Fundamental Right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it Article 359(1) enables the President to suspend the enforcement even of the right which were sanctified by being lifted out of the common morass of human rights. If the enforcement of the Fundamental Rights can be suspended during an emergency it is hard to accept that the right to enforce no Fundamental Rights relating to the same subject matter should remain alive. [396 G H 397 A] The words "conferred by Part Ill ' which occur in article 359(1) are not intended to exclude or except from the purview of the Presidential Order rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era. apart from the Constitution. The words "conferred by Part III are used only in order to identify the particular rights the enforcement of which can be suspended by tho President and not in order to impose a limitation the power of the President so as to put those rights which exist or which existed apart from the constitution beyond the reach of that power. It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution either by way of a natural right statutory right common law right or a right available under the law of port. Whatever may be the source of the right and whatever may be its justification. the right in essence and substance is the right to personal liberty. That 195 right having been included in Part III, its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 359(1). [397 E H 398 A C] The rights conferred by article 21 and 19 cannot be treated as mutually exclusive But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another. The right conferred by Article 21 is only a description of the right of personal liberty in older to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21. [398 F G] Rustom Cavasajee Cooper vs Union of India ; , 578, referred to. The circumstance that The pre constitution rights continued in force after the enchantment of the Constitution in view of article 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty. having the same content as the right conferred by article 21 would fall within the mischief to the Presidential order. [398 C H, 399 A] The theory of eclipse has no application to such cases because that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts. When the repugnancy is removed the eclipse also is removed and the law becomes valid. [399 A B] As regards the doctrine of merger, every prior right to personal liberty merged in the right to personal liberty conferred by Part III. But whether it merged or not, it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty. In that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III. [399 B C] Article 361(3) speaks of a process for the arrest or imprisonment of a Governor issuing from any court. Fundamental Rights can be exercised as against judicial orders but the circumstances in which such a Process may come to be issued. if at all, may conceivably affect the decision of the question whether a Presidential Order issued under Article 359(1) can bar the remedy of an aggrieved Governor.[400 B C] A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievance at the instance of a private party that article 256 has not been complied with by a State Government. [400 D] [As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation His Lordship preferred to express no firm opinion though, the greater probability is that such a challenge may tail in face of a Presidential order of the kind which has. been passed in the instant case. [400 D E] The existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting. those rights from the purview of the order. [400 E] Dhirubha Devisingh Gohil vs The State of Bombay [1955] 1 SCR and Makhan Singh v State of Punjab [1964] 4 SCR 797, 818 819, applied. The Presidential order dated June 27, 1975, does not contain any clause like the one in the order dated November 3, 1962 Article 359(1) is only an 196 enabling provision and the validity of a plea cannot be tested with reference to that Article. The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359(1). It is the Presidential order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about. The Presidential order in the instant case is not subject to the preconditions that the detenu should have been deprived of his right under any particular Act and therefor, there is no scope for the enquiry whether the order is consistent or in conformity with any particular Act. [405 B H, 406 A, 407 B C] Makhan Singh vs State of Punjab [1964] 4 SCR 797; Dr. Ram Manohar Lohia vs State of Bihar ; K. Anandan Nambiar and Anr. vs Chief Security Government of Madras & ors. ; State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; , discussed and distinguished. A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes Other than those for which the power was intended by law to be exercise. In view of the fact that an unconditional Presidential order of the present kind effects the locus standi of the petitioner to move any court for the enforcement of any of his Fundamental Rights mentioned in the order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the law. So long as the statutory prescription can be seen on the face of the order to have been complied with no further inquiry is permissible as to whether the order is vitiated by legal mala fides. [409 E F] Makhan Singh vs State of Punjab [1964] 4 SCR 797; Jai Chand Lall Sethia vs State of West Bengal & ors. [1966] Supp. SCR 464 and Durgadas Shirali vs Union of India & ors. ; , referred to. As regards mala fides in the sense of malice in fact, the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order. If in any given ease an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case. But, short of such ex facie vitiation, any challenge to a detention order on the around of actual mala fides is also excluded under the Presidential order dated June 27, 1975. 1407 G H, 408 A B] Section 16A(9) is not unconstitutional on the ground that it constitutions an encroachment on the writ jurisdiction of the High Court and article 226. There is no warrant for reading down that section so as to allow the courts to inspect the relevant files, to the exclusion of all other parties. [409 D, D] Section 16A (9) is in aid of the constitutional power conferred by article 359(1) and further effectuates the purpose of the Presidential order issued under that Article. If so, it cannot be declared unconstitutional. [410 A] The rule enunciated in section 16A(9) is a genuine rule of evidence. [410 B] A. K. Gopalan vs State of Madras ; and Mohd. Maqbool Damnoo vs State of Jammu & Kashmir ; , distinguished. The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction. These are not for that reason unconstitutional qua the High Court 's jurisdiction under article 226. [410 F] The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the invasion of his rights. Section 16A(9) cannot be said to shut out an inquiry which is otherwise within the jurisdiction of the High Court to make. [411 B] 197 Section 18 does not suffer from the vice of excessive delegation and is a valid piece of legislation. [414 D] That section only declares what was the true position prior to its enactment on June 25, 1975. The amendment of section 18 by the substitution of the words "in respect of whom an order is made or purported to be made under section 3", in place of the words "detained under this Act", does not render the section open to a challenge on the ground of excessive delegation. The words "purported to be made" have been inserted in order to obviate the challenging that the detention is not in strict conformity with the Act. Such a challenge is even otherwise barred under the Presidential order. The object of he said provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen lo be in less Than absolute conformity with the . [412 B C] His Holiness Kesvananda Bharati Sripadagalarvaru vs State of Kerala [1973] Supp. SCR I and Makhan Singh. v State of Punjab [1964] 4 SCR 797 referred. A jurisdiction of suspicion is not a forum for objectivity. The only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of its order, the stated purpose of detention is within the terms of law. [414 E F] Zamora 's case ; Rex vs Halliday ; , 271. liversidge vs Sir John Anderson ; and Greene vs Secretary of State , referred to. No judgment can be read as if it is a statute. The generality of the expressions which may be found in a judgment are not intended to be expositions of the who 's law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it because . the essence of the decision is its ratio and not every observation found therein. [401 C E] Quinn vs Leatham, ; , 506 auld State of Orissa vs Sudhansu Sekhar Misra & Ors.[1968] 2 SCR 154, 163, reiterated. Per P. N. Bhagwati, J. The Presidential order dated June 27, 1975, bars maintainability of a petition for a writ of habes corpus when an order of detention is challenged on the ground that it is vitiated by mala fides, legal, factual or is based on extraneous considerations or is not under the Act or is not in compliance with it. [477 B C] The suspension of the privilege of the writ does not legalise what is done while it continues: it merely suspends for the time. being the remedy of the writ. [461 A B] The words "the right to move any court" are wide enough to include all claims made by citizens in any court of competent jurisdiction where it shown that the said claims cannot be effectively adjudicate upon. without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified Fundamental Rights. There can be no doubt that in view of the Presidential order which mentions article 21, the detenus would have no locus standi to maintain the writ petitions if it could be shown that the writ petitions were for the enforcement of the rights conferred by article 21. [424 C E] Makhan Singh vs State of Punjab [1964] 4 SCR 797, followed. When a Presidential order is issued under article 353, clause (1), the Fundamental Right mentioned in the Presidential order is suspended so that the restriction on the power of the executive or the legislature imposed by the Fundamental Right is lifted while the Presidential order is in operation and 198 the executive or the legislature is free to make any law or to make any action which it would, but for the provisions contained in Part 111, be competent to make or to take. the words 'but for the provisions contained in that part" that is, but for the Fundamental Rights, mean "if the Fundamental Rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even the Presidential order mentions article 21, clause (1A) of article 359 Would not enable the executive to deprive a person of his Personal liberty without sanction of law and except in conformity with or in accordance with law. It ' an order or dentention is made by the executive without the authority of law it would be invalid and its invalidity would not be cured by clause (IA) or article 359 because that clause does not protect executive action taken without lawful authority. An unlawful order of detention would not be protected from challenge under article 21 by reason of clause (IA) of article 359 and the detenu would be entitled to complain of such unlawful detention as being, in violation of ' article 21 except in so far as his right tor move the court for that purpose may be held to have been taken away by clause (1) of article 359. [427 C H] State of Madhya Pradesh v Thakur Bharat Singh ; ; District Collector of Hyderabad vs M/s Ibrahim & Co. ; Bennett Coleman & Co. vs Union of India ; and Shree Meenakshi Mills Ltd. vs Union of India , applied. Even though a Presidential Order issued under clause (1) of Art, 359 mentions article 21, where it is found that a detention has not been made in pursuance of lawful authority or in other words, the detention is without the authority of law, whether by reason of there being no law at all or by reason of the law under. which the detention is made being void, clause (1A) of Art, 359 would not protect it from challenge under article 21 and it would be in conflict with that Article [429 H. 430 A] , The words "rights, conferred by Part III" cannot be read in isolation nor can they be construed by reference to theoretical or doctrinaire considerations. 'They must be read in the context of the provisions enacted in Part 111 in order. to determine what are the rights conferred by the provisions in that Part, It is true that Art, 21 is couched in negative language. It is not uncommon in legislative practice to use negative language for conferring a right. That is often done for lending greater emphasis and strength to the legislative enactment. Article 21 confers the Fundamental Right of personal liberty. [430 F H] Punjab Province vs Daulat Singh 73 Indian Appeals 59; Basheshar Nath vs The Commissioner of Income Tax Delhi & Rajasthan [1959] Supp. (1) SCR 529; State of Bihar vs Maharajidhiraj Kameshwar Singh of Derbhanga & Ors. at p.988; P.D. Shamdasani vs Central Bank of India Ltd. ; AND R.C. Cooper vs Union of India ; referred to If article 21 were construed as not conferring a right to personal liberty, then there would be no Fundamental Right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art .21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32, for that Article is available only for enforcement of the rights. conferred by Part III. That would be a starting consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention, resulting in a departure from the well settled constructional position of article 21. [432 B D] No attribute of personal liberty can be regarded as having been calved out of article 21. That Article protects all attributes of persona; liberty against, executive action which is not supported by law. When a person is detained. there is deprivation of personal liberty within the meaning of article 21. 1433 A BI Kharak Singh vs State of U.P. & Ors. [1964] 1 SCR 332. referred to 199 The protection under article 21 is only against State action and not against private individuals and the protection, it secures, it is a limited one. The only safeguard enacted by article 21 is that a person cannot be deprived of his persona liberty except according to procedure prescribed by "State made" law. It is clear on plain natural construction of its language that article 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty and secondly, such law must prescribe a procedure. The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law". When a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation. Article 21, thus, provides both substantive as well as procedural safeguards. Two other ingredients of article 21 are that there must not only be a law authorising deprivation of personal liberty there must also be a procedure prescribed by law or in other words law must prescribe a procedure. [433 C F; 434 A C,H: 435 B] P. D. Shamdasani vs Central Bank of India Ltd. ; Smt. Vidya Verma vs Dr. Shiv Narain and A. K. Gopalan vs State of Madras ; , followed. Article 21, operates not merely as a restriction on executive action against deprivation of ' personal liberty without authority of law, but it also enacts d check on the legislature by insisting that the law, which authorises depravation, must establish a procedure. What the procedure should be is not laid down in this Article, but there must be some procedure and at the least, it must conform to the minimal requirements of article 22. "Law" within the meaning of article 21 must be a valid law and ' not only must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the Fundamental Rights enumerated in Part III. [435 C D] Shambhu Nath Sarkar vs The State of West Bengal ; ; and Khudiram Das vs The State of West Bengal & ors. ; , referred The constitutional principle in Eshugabayi E eko vs The officer Administrating the Government of Nigeria has been accepted by the courts in India as part of the law of the land. In our country, even in pre Constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law. [438 B, 439 A] Liversidge vs Sit. John Anderson , Vimlabai Deshpande vs Emperor AIR 1945 Nag. 8. Jitenderanath Ghosh vs The Chief Secretary to the Government of Bengal, ILR at 377; In re: Banwarilal Roy 48 Cal. Weekly Notes 766 at 780; Secretary of State for India vs Hari Bhanji Mad. 373; Province of Bombay vs Khushaldas Advani ; and P. K. Tare vs Emperor AIR 1943 Nag. 26, referred. Even prior the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts. It was, clearly "law" in force" and, ordinarily, by reason of article 372 it would have continued to subsist as a distinct and separate principle of law hr even after the commencement of the Constitution, until some aspects of ' this principle of Law were expressly recognised and given constitutional embodiment in different Articles of the Constitution. [439 B C] When this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a Fundamental light and enacted as such in article 21, it cannot continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture, unless it were also enacted as a statutory principle by some positive law of the State. It cannot continue in force under article 372 when it is expressly recognised and embodied as a Fundamental Right in article 21 and finds a place in the express provisions of the Constitution When the Constitution makers have clearly intended 200 that this right should be subject to the limitation imposed by article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same right continues to exist independently, but free from the limitation imposed by article 359, clauses (1) and (1A) Such a construction would defeat the object of the constitution makers in imposing the limitation under article 359, clauses (1) and (1A) and make a mockery of that limitation. The Presidential order would in such a case become meaningless and ineffectual. [439 F H, 440 A C] The only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under article 21 is that the principle of Rule of Law, on what the executive cannot interfere with the personal liberty of any person except by. authority of law, is enacted in article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty independently and apart from that Article. Consequently, when the enforcement of the right of personnel liberty conferred by article 21 is suspended by a Presidential order the detenu cannot circumvent the Presidential order and challenge the legality of his deletion by falling back on the supposed right of personal liberty based on the principle of Rule of Law. [440F H] The executive is plainly and indubitably subordinated to the law and it cannot flout the mandate of the law but must act in accordance with the law. [441 B] Eastern Trust Company vs Mckenzie Mann. & Co. ; Rai Sahib Ram Jawaya Kapur vs The State of Punjab and State of Madhya Pradesh vs Thakur Bharat Singh ; referred to The Presidential orders issued under article 359 clause (1) do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power. Of the executive so as to permit it to go beyond what is sanctioned by law. As soon as the emergency comes to an end and the Presidential order ceases to be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law. [161 A C] Whilst a Presidential Order issued under article 359, clause (1) is in operation, the Rule of Law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law its action would be unlawful but merely the remedy would be temporarily baned where it involves enforcement of any of the Fundamental Rights specified in the Presidential order. [461 C D] When the right of personal liberty based on the Rule of Law which existed immediately prior to the Commencement of the Constitution has been enacted in the Constitution as a Fundamental Right in article 21 with the limitation that when there is a Proclamation of Emergency, the President may by order under article 359, clause (1) suspend its enforcement, that right of personal liberty based on the Rule of law cannot continue to exist as a distinct and independent right free from the limitation as to enforcement contained in article 359 clause (1). It would be meaningless and futile for the Constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by article 21, if the detenu could with impunity, disregard such limitation and fall back on the right of personal liberty based on the Rule of Law. [445 E G] Attorney General vs De Keyser 's Royal Hotel, ; , discussed. Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, followed. On an application of the maxim expressum facit cessare tacitum. that is what is expressed makes what is silent cease a principle of logic and common 201 sense and not merely a technical rule of construction the express provision in article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution. [447 D E, 448 D] Shankara Rao Badami vs State of Mysore ; and State (Walsh and ors.) vs Lennon and ors. 1942 Irish Report. of 112, applied. The contention that the principle of Rule of Law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent Principle unaffected inter alia by the enactment of article 21, is not correct. [451 Al State of Madhya Pradesh vs Thakur Bharat Singh [19671 2 SCR 454; District Collector, Hyderabad vs M/s. Ibrahim & Co. ; Bennet Coleman & Co. vs Union of India ; ; Shree Meenakshi Mills Ltd. vs Union of India & ors. ; Bidi Supply Co. vs Union of India ; ; Bishan Das & Ors. v State of Punjab ; ; State of Bihar vs Kameshwar Prasad Verma ; ; Eshugbayi Eleko vs The officer Administering the Government of Nigeria AIR 1931 PC and Makhan Singh V. Sate of Punjab [1964] 4 SCR 797, distinguished. The words 'any court in Article 21 must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights in article 359 clause ( 1 ) can be enforced by the citizens.[454 Al Makhan Singh V. State of Punjab , followed. When the Presidential order is without any condition, in a detenu contends that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conformed on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf, that is, it is not in accordance with the Provisions of law, such a plea would be barred at the threshold by the Presidential order. [458 B C] Quinn & Leathen ; , State of Orissa vs Sudhansu Sekhar Misra ; Makhan Singh Tarsikka vs 'The State of Punjab ; A. Nambiar vs Chief Secretary ; and Sate of Maharashtra vs Prabhakar Pandurang Sangzgiri ; , distinguished. There is no scope for the contention that even if the enforcement of the Fundamental Right conferred by article 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law. [459 D] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973] Supp. SCR 1 and Golak Nath & Ors. vs State of Punjab ; , referred to. If the positive law of the State degrees that no person shall be deprived of his personal liberty except according to the procedure described by law, the enforcement of such statutory right would not be barred by the Presidential order. But, there is no legislation in our country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law. (in the contrary, section 18 of the , enacts that no person in respect of whom an order of detention is made or purposed to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any. h Because the Indian Penal Code in section 342 makes it penal to would fully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law, it cannot 202 be said on that account that section 342 of the Indian Penal Code confers a right of personal liberty. The utmost that can be said is that this section proceed on a recognition of the right of personal liberty enacted in article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision [459 E H, 460 A] The words four any other purpose in article 226 greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finals that the intention of a person is illegal. It is not necessary for this purpose that the court should be moved by the detenu. It is sufficient if it is moved by any person affected by the order of intention. When it is so moved and it examines the legality of the order of detention it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality. The words . any other purpose cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order. [460 B G] Article 359 clause (1) and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful. [461 F G] When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches of prosecution for such offence, he cannot be said to be enforcing the fundamental Right of the detenu or the murdered man under article 21 so as to attract the inhibition of the Presidential order. [461 F G] An application seeking to enforce a statutory obligation imposed on the police officer and a statutory right created in favour of an arrested person by section 57 of the Criminal Procedure Code would not be barred, because what is suspended by a Presidential Order specifying article 21 is the right to move the court for enforcement of the Fundamental Right conferred by that article and not the right to move the court for enforcement of the statutory right to be released granted under section 57, Cr. P C. [462 G] If a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential Order issued under article 359, clause (1). [463 G H] This does not mean that whenever a petition for a writ of habeas corpus comes before the court it must be rejected straightaway without even looking at the averments made in it. The court would have to consider where the bar of the Presidential order is attracted and for that purpose the court would have to the whether the order of detention is one made by an authority empowered to pass such an order under the Act. If it is not, it would not be State action. and the petition would not be one for enforcement of the right confirmed by article 21. [463 G H, 464 A] Once it is held that the obligation of the executive is not a deprive a person of his personal liberty except in accordance with law, is to be found only an article 21 and no where else it must follow necessarily that in challenging the legality of the detention, what the applicant claims is that there. is, , in fact fact, by the executive of the right of personal liberty conferred by Art 21 and that immediately attracts the applicability of the Presidential order. [460 D E] It is the basic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any suitable orders [442 G] John Allen 's case (1921) 2 Irish Reports 241, referred to: Merely by declaring martial law would not by itself deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to life and liberty. [443 A] 203 The declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Articles conferring the right to life and liberty as also of Articles 32 an l 226 and unless the right of an individuals to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provision of the Constitution, the individual would be entitled to enforce the right to life and liberty under article 32 or article 226 or by resorting to the ordinary process w. even during martial law. [443 A C] Article 34 clearly postulates that during the time that material law is in force no judicial process can issue to examine the legality of an act done by the military authorities or the executive in connection with the maintenance of restoration or order. [443 E F] During the martial law, the courts cannot and should not have the power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including, the ground of mala fides. But, if the courts are to be prevented from exercising such power during, martial law the situation can be brought about only by a Presidential order issued under C. Act 359 clause (i) and in no other way, and the Presidential Order. in so far as it suspends the enforcement of the right of personal liberty confirmed under article 21 must be constructed to bar challenge to the legality of detention in am, court including the Supreme Court and the High Courts whilst the Presidential Order is in operation, [444 A C] Ex parte Milligan (1866) 4 Wallace 2; Moyer vs Peabody , and Duncan vs Kohanmeku ; , referred to. There are two rights which the detenu has in this connection: one is the Fundamental Right conferred by article 22, clause (5) and the other is the statutory right conferred by section 8. Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. [463 B C] The theory of reflection is clearly erroneous. If the right conferred under section 8 were a reflection of the Fundamental Right conferred by article 22, clause (5) which is the object reflected must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection. But even if article 22 clause (5) were deleted from the Constitution, section 8 would still remain on the statute book until repealed by the legislature. The Presidential Order would not therefore, bar enforcement of the right conferred by section 8. [463 C D] Fathima Beebi vs M. K. Ravindranathan (1975) Crl. 1164, over ruled. It is true that sub sec. (9) (a) of section 16A does not specifically refer to any court. But, there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds, information and materials before a court. There is clearly an echo of section 123 of the Indian Evidence Act. Sub section (9) of section It is must also be held to be designed to achieve the same intention as prohibiting disclosure even to a court. Sub section (9) (a) of section 16A cannot, therefore, be read down so as to imply an exception in favour of disclosure to a court. [469 D, F] Khudiram Das vs The State of West Bengal & Ors. [1375] ` SCR 832; , Lee vs Burrel 170 English Reports 1402 and Liversidge vs Sir John Anderson ; referred to. There can be no doubt that article 226 is a constitutional provision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the Fundamental Right by article 21 and also for any other purpose. The High Court has. therefore, constitutional power to examine the Legality of detention and for that purpose to inquire and determine whether the detention is in accordance with the provisions of law. The constitutional Power cannot be taken away or abridged by a legislative enactment. If there is any legislative. 204 provision which obstructs or retards the exercise of this constitutional power it would be void. It is, therefore, clear that if it can be shown that sub section (9) (a) of section 16A abridges or whitles down the constitutional power of the High Court under article 226 or obstructs or retards its exercise, it would be void as being in conflict with article 226. If there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under article 226 and would be void as offending that Article. [470 C D, 471 A B, E F] Hari Vishnu Kamath vs Syed Ahmad Ishaque & Ors. ; ; Durga Shankar Mehta vs Thakur Raghuraj Singh & Ors. [1955] 1 SCR 267; Raj Krushna Bose vs Binod Kanungo & Ors. ; ; The Kerala Education Bill 1957, [1959] SCR 995; Prem Chand Garg vs Excise Commissioner, U.P. Allahabad [1963] Supp. 1 SCR 885; Khudiram Das vs State of West Bengal ; ; Biren Dutta & Ors. v, Cheif Commissioner of Tripura & Anr. ; ; M.M. Damnoo vs J & K State ; and A.K. Gopalan vs State of. Madras [1950] SCR p. 80, referred. A rule of evidence merely determines what shall be regarded as relevant and admissible material or the purpose of enabling the court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the court and it cannot, in the circumstances, be violative of article 226. But in order that if should not fall foul of article 226, is must be a genuine rule of evidence. If in the guise of enacting a rule of evidence the legislature in effect and substance disable and impedes the High Court from effectively exercising its constitutional power under article 226. such an enactment would be void. It will be colourable exercise of legislative power. The legislature cannot be permitted to violate a constitutional provision by employing an indirect method. It a legislative provision, though in form and outward appearance a rule of evidence, is in substances and reality something different obstructing or impeding the exercise . The jurisdiction of the High Court under article 226, the form in which the legislative provision is clothed would not safe it from condemnation. [474 B C] It is well settled that in order to determine the true character of a legislative provision. the court must have regard to the substance of the provision and not its form. Sub section (9)(a) of section 16A is in form and outward appearance a rules of evidence which says that the grounds, information and materials on which the order of detention is made or the declaration under sub section) or sub section (3) is based shall be treated as confidential and shall be deemed to refer to matters of State and be against the public interest to disclose. Sub section (9) (a) of section 16A assumes valid declaration under sub section (2) or sub section (3) and it is only when such a declaration has been made that sub section (9)(a) of section 16A applies or in other words. It is only in cases where a person is detained in order to deal effectively with the emergency. that the disclosure of the grounds, information and materials is prohibited by sub sec. (9)(a) of section 16A. [474 E F 475 B C, E F] The rule enacted in sub section (9)(a) of section 16A bears close analogy to a rule of conclusive presumption and in the circumstance it must be regard as a genuine rule of evidence. [476 D] If the grounds, information and materials have no relation to matter of State or they cannot possibly be of such a character that their closure would injure public interest, the legislature cannot, by merely employing a legal function, deem them to refer to matters of State which it would be against public interest to disclose an 1 thereby exclude them from the judicial ken. That would not be a genuine rule of evidence: it would be a colourable legislative device a fraudulent exercise of power. There can be no blanket ban on disclosure of the grounds, information and materials to the High Court of this Court irrespective of their true character in such cases [476 E F] 205 M. M. Damnoo vs State of J & K ; ; A. K. Gopalan vs State of Madras ; and Liversidge vs Sir John Anderson ; referred to. The grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in sub section genuinely partakes of the character of a rule of evidence. Sub section (9) (a) of section 16A enacts a genuine rule of evidence and it does not detract from or affect the jurisdiction of the High Court under article 225 and hence it cannot be successfully assailed as invalid. [476 G H, 477 A] There is no warrant for reading down sub section 9A of section 16 so as to imply a favour in favour of disclosure to the court The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under article 226 and is accordingly not void. [477, C D] If the declaration under sub section (2) or sub section (3) is invalid, subs 9(a) of section 16A will not be attracted on the grounds of information and materials on which the order of detention is made, would not be privileged under sub section therefore, sub section 9(a) of section 16A enacts a genuine rule of evidence. [477 A B] [His Lordship thought it unnecessary to go into the question of construction and validity of section 18 of the .] [464 A] An obiter cannot take the place of the ratio. Judges are not oracles. It has no binding effect and it cannot be regarded as conclusive on the point when considering the observations of a High judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand. [1455 F H, 456 A C] H. M. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India ; , applied Per H. R. Khanna, J. (dissenting) Article 21 cannot be considered to be the role repository of the right to life and personal liberty. The right to life and personal liberty is the most decisions right of human beings in civilised societies governed by the rule of law. H] Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher values which mankind began to cherish in its, evolution from a state of tooth and claw to a civilized existence. The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty, it existed and was in force before the coming into force of the Constitution. [268 C D] Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. That is the essential postulate and basic assumption of the Rule of Law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a Lawless society and one governed by laws would cease to have any meaning. the principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has 206 the effect of tampering with life and liberty must receive substance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the Fundamental Rights guaranteed in part III of the Constitution. It does not, however, follow from the above that if article 21 had not been drafted and inserted in Part III, in that even would have been permissible for the State to deprive a person of his life or liberty without the authority of law. There are no case, to show that before the coming into force of the Constitution or in countries under Rule of Law where there is no provision corresponding to article 21, a claim was ever sustained by the court, that the State can deprive a person of his life or liberty without the authority of law. [302 H, 269 H, 270 A C] Olmstead vs United States ; (1928); James Sommersett 's case (1772), 16 Cr. Pract. Fabrigas vs Mostyn ; Ameer Khan 's case 6 Bengal Law Reports 392. Eshugbai Eleko vs Officer Administering the Government of Nigeria, ; Prabhakar Kesheo Tare & Ors. vs Emperor AIR (1943) Nag. 26; Vimlabai Deshpande vs Emperor A.I.R. 1945 Nag. 8: Jitendranath Ghosh vs The Cheif Secretary to the Government of Bengal ILR ; In re: Banwari Lal Roy & Ors. Bidi Supply Co. vs The Union of India & Ors. ; and Baheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan & Anr. [1959] Supp. (1) 528, referred to. The view, that when right to enforce the right under article 21 is supplied the result would be that there would be no remedy against deprivation of a persons life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law is hot acceptable. the facts that the framers of the Constitution made an aspect of such right a part or the fundamental Rights did not have the effect of determining the independent identity of such right and of making article 21 to be the sole repository. Of that right. The real effect was to ensure that a law under which a per on can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or such law should be a valid law not violation of Fundamental Rights guaranteed by Part III of the Constitution Recognition as Fundamental Right of one aspect of the pre constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned. compared to the position if an aspect of such right had not been recognised as Fundamental Right because of The vulnerability of Fundamental Rights accruing from article 359. 1271 D G] A. K. Gopalan vs State of Madras ; and Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, referred to. After the coming into force of the Constitution a detenu has two remedies one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure. The remedy under an earlier statutory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity. 1272 D E] Makhan Singh vs State of Punjab [1964] 4 SCR 797, applied. Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, not invokable. The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the Rule of Law of the sanctity of life and liberty, it flows equally from, the fact that under our penal laws no one, is empowered to deprive a, person of his life or liberty without the authority of law [272 l I, 273 A] The fact that penal laws of India answer to the description of the word law which has been used in article 21 would not militate against the inference 207 that article 21 is not the sole repository of the right to life or personal liberty. Nor is it the effect of article 21 that penal laws get merged in article 21 because of the act that they constitute law as mentioned in article 21, for were it so the suspension of the right to move a court for enforcement of Fundamental Right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws. At one time the Constitution came into force, the legal position was that no one could be deprived of his life or liberty without the authority of law. [273 A C] Director of Rationing and Distribution vs 'The Corporation of Calcutta & ors. ; , relied on. It is difficult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no One could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction or interpretation warrants such an inference. The constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491. Of the Code of Criminal Procedure continued to he a part of that Code till that Code was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under. the new Code of Criminal Procedure. 1973, the same remedy is still available under article 226 of the Constitution. [273 H, 274 A Ci Makhan Singh vs State of Punjab [1964] 4 SCR 797, relied on. According to the law in force in India before the coming into force of the Constitution, no one could be deprived of his life and personal liberty without the authority of law. Such a claw continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution. [303 The word law has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying, the principles of natural justice. The procedure established by law means the procedure established by law made by the State, that is to say, the Union Parliament or the legislatures of the States. Law meant a valid and binding law under the provisions of the Constitution and not one infringing Fundamental Rights. [266 C D] A, K. Gopalan vs State of Madras ; , explained. The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21 is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that Article for obtaining relief from the court during the period of emergency. [266 D E] Starting consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question, no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty. If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence. The construction which does not result in such consequences is not only possible, it is also pre eminently possible. 1303 B C] Equally well established is the`rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. however, two constructions of the municipal law are possible, The court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations. While dealing with the Presidential Order under article 359(1) such a construction should be a adopted. as would, if possible, not bring it in conflict with the above Articles 8 and 9 of U.N Charter. It is plain that such a constructional is not only possible, it is a also pre eminently 208 reasonable The Presidential orders therefore, should be so constructed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law. 1276 A B. 277 D E] Corocraft Ltd. vs Pan American Airways Inc ; Article 51 of` the Constitution, H. H. Kesavananda Bharati vs State of Kerala [1973] Supp. SCR I, referred to. The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and, therefore, it cannot be said that the resulting situation would mean the absence of the Rule of law. cannot stand close scrutiny for it tries to equate illusion of the Rule of Law with the reality of Rule of Law. A state of negation of Rule of Law would not cease to be such a slate because of the tact that such a state of negation of Rule of Law has been brought About by a statute. Absence of Rule of Law would nevertheless be absence of Rule of Law even though it is brought about by a law to repeal all laws. The Rule of Law requires something, more the legal principle "quod principi placuit legis habet vigorem." [277 E H, 278 A Bl Freedom under law is not absolute freedom. It has its own limitations in its own interest, and can properly be described as regulated freedom. The truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free. The need of liberty for each is necessarily qualified and conditioned by the need of liberty for all Liberty in the State, or legal liberty. is never the absolute liberty or all, but relative and regulated liberty. Rule of law is true antithesis of arbitrariness. The rule of law has come to be regarded as the mark of a free society. Its content is different in different countries. It is, however, identified with the liberty of 'he individual. It seeks to maintain a balance between the opposing notions of individual liberty and Public order. 1267 C D; 268 B C] In a long chain of authorities the Supreme Court has laid stress upon the prevalence of the Rule of Law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law. There is no valid reason to depart from the rule laid down in those decisions. 1278 E. 281 E, 303 C D] Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab State of Madhya Pradesh & Anr. vs Thakur Bharat Singh ; Chief Settlement Commissioner, Rehabilitation Department Punjab & Ors. vs Om Parkash & Ors. ; ; District Collector of Hyderabad & Ors. vs M/s. Ibrahim & Co. etc. ; Bennett Coleman & Co. and Ors. vs Union of India ; Shree Meenaksi Mills Ltd. vs Union of India ; Naraindas Indurkhya vs The State of Madhya Pradesh ; Director of Rationing and Distribution vs The Corporation of Calcutta & Ors ; ; Bishan Das & Ors. vs The State of Punjab & Ors. ; ; section G. Jaisinghani vs Union of India & Ors. ; United States vs Wunderlick ; ; John Wilkes 's case at 2539 and Smt. Indira Nehru Gandhi vs Shri Rai Narain. , referred to. According to article 21. no one can be deprived of his right to personal liberty except in accordance with the procedure established by law. Procedure for the exercise of power of depriving a person of his right of personal Liberty necessarily postulates the existence of the substantive power. When article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as well as the procedure for the exercise of such power. When right to move in court for enforcement of right guaranteed by Art 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life and personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power. [303 D F] 209 The difference in phraseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the Conclusion that because of the new Presidential order dated rune 27, 1975, a detention order need not comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law For preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order. The effect of the change in phraseology would only be that such of the observation made by his Court fn the context of the language of the earlier Presidential orders cannot now be relied upon. Reliance, however, can still be placed upon the observations made in various cases which were not linked with the phraseology of the earlier Presidential orders. [263 F H] Makhan Singh vs Stare of Punjab [1964] 4 SCR 797; State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; and Dr. Ram Manohar Lohia vs State of Bihar & Ors. , referred to. A Presidential order. under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the Fundamental Rights mentioned in the order. Rights created by statutes being not Fundamental Rights can be enforced during the period of emergency despite the Presidential order. Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order. Any redress sought from a court of law on the score of breach of statutory provision would be outside the purview of article 359(1) and the Presidential order made thereunder. 1303 C Hl Anandan Nambiar & Anr. vs Chief Secretary, Govt. Of Madras ; @ 410, referred to. Clause (1A) of article 359 protects laws and executive actions from any attack on validity on the score of being violation of the Fundamental Rights mentioned in the Presidential order in the same way as article 358 protect the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency. The language of clause (IA) of It. 359 makes it clear that the protection which is afforded by that clause h is to such law or execute action as the State would but for the provisions contained in Part 111 of the Constitution be competent to make or take. The word competent has a significance and it is apparent that despite the Presidential order under article 359(1) in the case of executive action the competence of the State to take such action would have to be established. Such competence . Would, however, be judged ignoring the restriction placed by the provisions or Part III of tho Constitution. To put it in other words, clause (IA) of article 359 does not dispense with the necessity of competence to make laws. Or take executive action. But it would still be necessary to establish the competence de hors the restrictions of the Fundamental Rights. [283 D E] Though, there is no reference to substantive power in article 21, it would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of that power [284 D] The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The pre supposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power The co existence of substantive power and procedure established by law for depriving R person of his life and liberty which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding 16 833 SCI/76. 210 procedure, suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that proposition. The suspension of the right to make. any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise. Of substantive power to deprive a person of his life or personal liberty, it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power. The close bond which is there between the existence of substantive power of depriving a Person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in article 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power. [284 G H, 285 A G] In considering the effect of Presidential order suspending the right of a person tn move my court for enforcement of right guaranteed by Art, 21, the words "except according to procedure established by law should not be treated to be synonymous with save by authority of law . [285 D] A Presidential order under article 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can it bar access to the courts of persons seeking redresses on he s ore of contravention of statutory provisions. Statutory provisions are enacted to be complied with and it is not permissible to contravene them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be adjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufference of the official concerned. It is the presence of legal sanctions which distinguished positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with law. Non complince with statutory provisions entails certain legal consequences. The Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein. When a statute deals with matters effecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the Statute would be circumscribed by its provisions and it would not the permissible to involve some indefinite general powers of the executive. [286 D H] Attorney General vs De Keyser 's Royal Hotel Ltd. , Jaichand Lall Sethia vs State of West Bengal [1966] Supp. SCR 464; Durgadas Shirali V. Union of India & ors. ; and G. Sadanandan vs State of Kerala . & Anr. , referred to. Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential order in question. [288 B, 304 A B] Greene vs Secretary of State for Home Affairs , Secretary of State for Home Affairs vs O 'Brien (609) and Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab , referred to. Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land. Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme. it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provi 211 sions of the Constitution and the laws made in accordance with those provisions. [290 F &] There is a clear demarcation of the spheres of function and power in our .`Constitution. The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of Life and personal liberty in contravention of the statute are brought to their notice. It would also mean that whatever it may be the law passed by the legislature, in the matter of life, and personal liberty of the citizens, the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it. It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislate and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution. The fact the the government which controls the executive has to enjoy the confidence so the legislator does not d tract from the above conclusion. The executive under our constitutional scheme is nob merely to enjoy the confidence of the majority in the legislature it is also bound to carry out the legislative as manifested by the statutes passed by the legislature. The Constitution further contemplated that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the Courts. [290 G H, 291 A C] No one can call deny the power of the State to assume vast powers of the detention in the interest of the security of the State. It may indeed the necessary to do so to meet the peril acing the nation. The consideration of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individual can only take as secondary piece. The motto has to be who lives, if the country dies. Extraordinary powers are always assumed by the Government in all countries in times of emergency because of the extraordinary nature of the emergency. The exercise of the power of detention. it is well settled depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention. There is no antithesis between the power of the State to detain a person without trial under a law or preventive detention and the power of the court to examine the legality of such detention. Tn dealing with an application for a writ of habeas corpus, the courts only, ensure that the detaining authorities act in accordance with the law of preventive detention. The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed l has to be cushioned with legal safeguarded. against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless. The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared on the possibility of an innocent person being convicted at trial in a court of law. 1291 F H, 292 A, D E] Rex vs Halliday Ex parte Sadiq ; @ 272 and Liversidge vs Sir John Anderson ; referred to 7 The Presidential order of June 27. 1975, did not aspect maintainability of the habeas corpus petitions to question the legality of the detention orders and such petitions could be proceeded with despite that order. [293 F] Principle in James Commersett 's case 1772 State Trials p. 1, referred to. A law of preventive detention is not punitive but precautionary and preventive. The power of detention under such law is based on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence. [294 F] A court cannot go behind the truth of the alleged facts. If The material is germane to the object for which detention is legally permissible and an 212 order. for detention is made don the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned regarding the necessity of detention. [295 E F] Sharpe vs Wakefield at p. 179 and Ross vs Papadopollos (on P. 33), referred to. Malice in fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the wrongful act, and it May be, in proceedings based on wrongs independent or contract, a very material ingredient in the question of whether a valid cause of action can be stated. [269 C D] Shearer vs Shields Bhut Nath vs State of West Bengal, ; , referred to. In view of the Presidential Order suspending the right of the person to move any court for enforcement of specified Fundamental Rights including the one under article 22(5), it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22(5). The Presidential order would. however not stand in the way of the infirmity of the vagueness of grounds of detention because of the contravention of section X(l) of . [297 E F] Every law providing for preventive detention contains certain procedural safeguards. It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention. Detention without trial results in serious inroads into personal liberty of an individual. In such case it is essential to ensure. that there is no deviation from the procedural safeguards provided by the statute. In the matter of even a criminal trial. it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice. The need for strict adherence to`strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a person even though he is not found guilty of the commission of an offence. To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards is provide by the legislature against the arbitrary use of the provisions relating to prevention detention. The history of personal Liberty is largely the history of insistence upon procedure. It would. therefore be wholly inappropriate to countenance and laxity in the mutter of strict compliance with procedural requirements prescribed for preventive detention. [297 G H, 9`s A B] Once substantial disquieting doubt: are raised by the detenue in the mind of the court regarding the validity or his detention. it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention by filing a good return. [299 C D] Kishori Mohan vs State of West Bengal AIR 1974 SC` 1749; king Emperor vs Sibnath Banerji 71 IA 241 and G. Sadanandan vs State of Kerala & Anr., , referred to. [His Lordship did not express any opinion on the question of the validity of s 16A(9) of the . [ 301 A] The appropriate occasion for the High Court to go into the constitutional validity of section 16A(9) and external all judicial scrutiny in writs of habeas corpus would be when the State or a detenu whoever is aggrieved upon, comes in appeal against the final judgments in any of the petitions pending in the High courts. The whole matter would then be at large before the Supreme Court and it would not be inhibited by procedural or other constraints. It would not be permissible or proper for the Supreme Court to short circuit the whole 213 thing and decide the matter by by passing the High Courts who are seized of the matter. [302 F G and 304 D E] Section 18 of the would not detract from the view that article 21 is not the sole repository of the right to personal liberty. The principle that no one shall be deprived of his life and personal liberty without the authority of law is also an essential facet of the Rule of law. Section 18, therefore, cannot be of much assistance. The view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention is not correct. There has been no amendment of section 3 of the Act. [274 D F] Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act, it shall be taken to be an order under section 3 of the Act. Apart from the fact that such an inference is not permissible on the language of section 18, the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power. The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made. It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made. To do so would be tantamount to abdication of Legislation function for in such an event it would be open to the detaining authority to detain a person on any ground whatsoever. [274 F H, 275 A] This Court in appeal by the State enlarge the area of the Unfavourable decision qua the state and make its position worse compared to what it was before the filing of the appeal. Procedural propriety in matters relating to appeals forbids such a course. The question of event of judicial scrutiny in the light of section 16A should be gone into when the whole matter is at large before this court and this court is not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing. It is primarily for the High Courts before which the matters are pending to decide the question of the of judicial scrutiny in the light of section 16A(9), as amended by Act. 14 of 1976. A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A(9), as, amended by Act 14 of 1976 should be avoided. [301 F H] There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders. [304 C] The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established. 1304 D] Unanimity obtained without sacrifice of conviction commends the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. [304 E] A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed. [304 G] Prophets with Honor by Alan Barth 1974 Ed. p. 3 6. referred to. Observation: Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognise than that unanimity should be secured through its sacrifice.

Appeal No. 2431 of 1966. Appeal by special leave from the Award of the Industrial Tribunal, Gujarat in Reference (IT) NO. 88 of 1962. 176 A. section R. Chari, M. K. Ramamurthi, Shyamala Pappu, Vineet Kumar, P. section Khera and Bindra Thakur, for the appellants. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Bhargava, J. This appeal, by special leave, is directed against an Award of the Industrial Tribunal, Gujarat, in an industrial dispute referred to it by the Government of Gujarat at the instance of the appellants who are 466 workmen of the Gujarat Electricity Board, Baroda (hereinafter referred to as "the Board") represented by the Saurashtra Vidyut Kamdar Sangh (hereinafter referred to as "the Sangh"). The dispute referred to related to two matters. One was the demand made in respect of rates of dearness allowance to be paid to the workmen. The second demand was that those of the workmen, to whom Contributory Provident Fund or Employees Provident Fund scheme was appli cable, should be granted gratuity equal to 15 days wages for every year of service in addition to the provident fund benefits, while those workmen, who were entitled to pension according to the pensionary scheme in force, should have their pension calculated after adding 50 per cent of the dearness allowance to the basic pay. The facts needed to explain the second demand may first be stated. The supply of electricity in the State of Saurashtra, prior to the year 1954, was being carried out departmentally by the Government of Saurashtra and the workmen employed in the power houses were, consequently, Government servants. On 1st July, 1954, a Saurashtra Electricity Board was constituted to run the power houses and the employees of the Electricity Department of the Government were sent to work with the Saurashtra Electricity Board on deputation. On 1st November, 1956, Saurashtra became a part of the Bombay State, hereafter the Saurashtra Electricity Board was dissolved with effect from 1st April, 1957 and its assets, liabilities, and employees were taken over by the Bombay State Electricity Board. The employees, who were originally in the service of the Saurashtra State Government were entitled to the pensionary scheme of the Saurashtra Government, while the Bombay State Electricity Board had a Provident Fund Scheme. The Saurashtra State Government servants, on being taken over by the Bombay State Electricity Board, were given the option of either continuing in their pensionary scheme, or of joining the Provident Fund Scheme of the Bombay State Electricity Board in which case the gratuity already accrued to them and the equivalent of pensionary benefits were credited to their accounts. Some of the employees opted for the Provident Fund Scheme, while others continued under the pensionary 177 scheme. Thereafter, on 1st May, '1960, the State of Bombay was bifurcated and a separate State of Gujarat was constituted; and, with effect from the same date, the Board came into existence. The Board ;took over all the electricity, power houses ,and electricity schemes in the State of Gujarat from the Bombay State Electricity Board, including the workmen who are the appellants in this appeal. The assets and liabilities of the Bombay State Electricity Board were divided between the Board, and the Maharashtra Electricity Board which was constituted for the State of Maharashtra which came into existence on bifurcation of the Bombay State. The Board continued both the Pensionary Scheme as well as the Provident Fund Scheme for the employees in the manner they were in force when the employees were working under the Bombay State Electricity Board. The employees, who were originally servants of the State Government, had ceased to be government servants with effect from 1st April, 1957 and later on 1st May 1960, became the employees of the Board, so that they were no longer entitled to the rights which the State Government might subsequently grant in respect of pension under the rules applicable to the government servants. The result was that even improvements granted in the pensionary scheme by the State Government to its employees did not enure to the benefit of the appellants. In these circumstances, the Sangh put forward the claim that the pension of employees, who were governed by the pensionary scheme, should be calculated not on the basis of basic salary, but after adding 50 per cent of the dearness allowance to it. In respect of employees, who were governed by the Provident Fund Scheme, a second benefit of gratuity was claimed. The demand for dearness allowance was that it should be linked with the scale prescribed for the Ahmedabad Millowners ' Association. The workmen demanded that employees, drawing up to Rs. 50 as basic pay, should be given dearness allowance at the scale applicable to Ahmedabad Millowners ' Association, those drawing between Rs. 50 to Rs. 100, D.A. at that scale plus Rs. 5, and those drawing above Rs. 100, dearness allowance at that scale plus Rs. 10. This demand was put forward before the Board originally on behalf of all the 9,208 employees of Class III and Class TV and some employees of Class I and Class II whose salary was below Rs. 300 per mensem, who were working either in the Gujarat Region or the Saurashtra Region. These employees were represented by seven different Unions, one of which was the Sangh who represented about 3,000 employees working in the Saurashtra region. The six Unions representing the employees working in the Gujarat region amicably settled these disputes with the Board by entering into agreements. The 17 8 Board gave some increase in dearness allowance retrospectively with effect from 1st October, 1961, while the second demand relating to gratuity and calculation of pension after adding 50 per cent of the dearness allowance was given up. The Sangh declined to accept this settlement, whereupon the Board offered terms in accordance with the settlement to all the employees in the Saurashtra region individually. Out of the total of 3,042 in the Saurashtra region, 622 signed General Standing Order 56, under which the Board had made its offer to individual employees ,on the basis of the settlements arrived at before the reference to conciliation. 1152 signed before the date of the failure report by the Conciliation Officer; 2058 signed before the reference and 518 signed after the reference. Thus, the dispute, after the reference, became confined to the remaining 466 employees who did not, on individual basis, accept the offer made by the Board. The Tribunal considered this dispute relating to the dearness allowance raised by these employees through the Sangh as also the other demand relating to gratuity and calculation of pension, and, by the impugned Award, rejected these demands. Consequently, the workmen have come up in this appeal through the Sangh. The main ground for rejecting these demands, on which the Award is based, is that the Board does not have the capacity to meet the additional expenditure that would have to be incurred if these demands are acceded to Before the Tribunal, this aspect of the case was sought to be met by the Sangh by urging that the total wage packet, including the dearness allowance claimed by them in the demand, would only satisfy the requirement of a minimum wage, so that the Board 's capacity to pay was irrelevant; but the award shows that the Sangh completely failed to provide any material to prove that the total wages, including the dearness allowance as offered by the Board on the basis of the settlements, are less than the minimum wage. This Court, in Hindustan Antibiotics Ltd. vs The Workmen & Others(1), recognised the three concepts of minimum wage, fair wage, and living wage by quoting the following passage from the decision in The Hindustan Times Ltd. vs Their Workmen(2), and stating that it briefly and neatly defined the three concepts : "In trying to keep true to the two points of social philosophy and economic necessities which vie for consideration, industrial adjudication has set to itself certain standards in the matter of wage fixation. At the bottom of the ladder, there is the minimum basic (1) (2) [1964] 1 S.C.R. 234. 179 wage which the employer of any industrial labour must pay in order to be allowed to continue an industry. Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is "adequate to cover the normal needs of the average employee regarded as a human being in a civilised society". Above the fair wage is the "living wage" a wage 'which will maintain the workman in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and physical well being, enough to enable him to qualify to discharge his duties as a citizen." These decisions make it clear that, if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to continue the industry; and, in such a case, the capacity of the industry to pay is irrelevant. However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity of the industry to pay is a very important factor, and the burden above the minimum wage can only be justifiably imposed if the industry is capable of meeting that extra burden. On this principle, in the present case, if the appellants had succeeded in showing that they were not receiving even the minimum wage on the basis of the offer made by the Board in line with the settlements arrived at with the other Unions and individual workmen members of the Sangh, there would have been full justification for granting additional dearness allowance, ignoring the inability of the Board to meet that extra expenditure. The finding of the Tribunal, however, is that the demand of the workmen is not confined to minimum wage, but that, as a result of the demand, the wages will be above the minimum wage. Learned counsel appearing for the appellants before us did not try to contend that the wages which were being paid by the Board, were lower than the minimum wage, so that the claim for the additional dearness allowance cannot be considered without taking into account the capacity of the Board to meet the expenditure. So far as the question of capacity of the board to pay is concerned, there is a clear finding by the Tribunal that the Board is running at heavy losses, so that it is not in a position to meet the extra expenditure of about Rs. 49 lakhs a year which will be involved if the dearness allowance is fixed as claimed by the Sangh. The Tribunal has found that the Board, when constituted on 1st May, 1960, inherited an accumulated deficit 'of over Rs. 2 crores from the Bombay State Electricity Board. In its own working, the Board sustained a loss of over Rs. 29 lakhs between 1st May, 1960 and 31st March, 1961, and in 180 the two succeeding years 1961 62 and 1962 63, the losses in curred were in the region of Rs. 39 lakhs and Rs. 41 lakhs. The Tribunal, thus, held that the total loss was to the tune of Rs. 31 millions; and since the Board had undertaken a further liability of over Rs. 6.75 lakhs a year under the settlements and the offer to individual workmen, it could not possibly undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance. The Tribunal was also of the opinion that, considering this financial condition of the Board, there was no justification for introducing a gratuity scheme for workmen governed by the Provident Fund Rules, nor was there any justification for calculation of pension on the basis of adding 50 per cent of the dearness allowance to the basic pay. Mr. Chari, counsel for the appellants, challenged this decision of the Tribunal on two grounds. The first ground was that the Tribunal was wrong in judging the capacity of the Board to pay after taking into account the deficit of over Rs. 2 crores which it had inherited from the Bombay State Electricity Board; and the second ground was that the financial capacity of the Board should be judged only on the basis of its commercial undertakings, excluding the activities of the Board which were in the nature of national duties. So far as the first point is concerned, we think that there is some force in the submission made by learned counsel. The deficit inherited by the Board from its predecessor cannot be treated as are venue loss which will have bearing on its paying capacity. Such inherited deficit should really have been treated as capital loss; but even this loss cannot be completely ignored, because the paying capacity of an employer has to take into account even capital losses. However, even if this accumulated deficit of over Rs. 2 crores is ignored, it is clear that, during the three years after its formation, the Board itself incurred heavy losses which totaled to about Rs. 110 lakhs. Consequently, even if that accumulated deficit is not taken into account, it cannot be held that the Board will have the capacity of bearing the additional financial burden to the tune of Rs. 49 lakhs a year, if required to pay dearness allowance at the rates claimed by the Sangh. On the second point, we are unable to accept the submission made by learned counsel. The Board was constituted under the Electricity (Supply) Act No. 54 of 1948, and section 18 of that Act lays down the duties of the Board. By its very constitution, the Board is charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such develop 181 ment in areas not for the time being served or adequately served by any licensee. In particular, the duty of the Board is to prepare and carry out schemes with the objects mentioned above; to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; and to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply. When the Board was constituted to carry out these duties, its capacity to bear the burden of paying wages to its employees has to be worked out after taking into account all the activities which the Statute requires it to carry on. The running of Power Houses is only one of the branch of those activities. The profit that the Board can be held to have earned can only be worked out after including in the accounts all the expenditure incurred by it on all its schemes for distribution of electricity to licensees or to consumers, whether in urban areas or in rural areas. In fact, there is not even an assertion on behalf of the appellants workmen that they were employed solely in connection with a profitable undertaking of the Board and had nothing to do at all with the other activities which the Board is actually carrying on. No doubt, learned counsel is right in urging on the basis of the decision of this Court in Hindustan Antibiotics Ltd() that the circumstance that the Board is an industry in the public sector does not exempt it from application of principles which apply to an industry in private sector, and the Board must also be made to pay wages on the same basis as Private sector employers. This, however, does not advance the case of the appellants, because, even in a private sector, additional burden over and above a minimum wage can only be justifiably imposed in industrial adjudication, if the employer has the capacity to meet that burden. In this case, the Tribunal has refused to grant the demand of the appellants not on the ground that the Board is an industry in public sector, but on the ground that it does not have the capacity to pay. That capacity has rightly been judged on the basis of all the undertakings being worked by the Board. The Tribunal, after holding that there was no justification for granting the demands of the workmen because the Board had no capacity to bear the additional burden, proceeded further to examine whether the Board 's existing scheme of payment of dearness allowance was reasonable and took into account various factors for arriving at its finding that it could not be held that the terms offered by the Board were unreasonable. In this connection, reliance was placed on behalf of the appellants on the fact that two Electric Supply Companies were paying wages which (1) [1967]1 S.C.R.652. 182 were much higher than the wages being paid by the Board, and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the employees of those Electric Supply Companies. One of those Electric Supply Companies is the Ahmedabad Electricity Co. Ltd., Ahmedabad, in whose case wages were fixed by an Award published in 1956 Industrial Court Reporter at p. 746. The other is the Viramgam Electric Supply Co. Ltd., Viramgam, the Award relating to which is published in 1968 Industrial Court Reporter at p. 1010. The argument was that wages paid by the Board should not be lower than those paid by these two Electric Supply Companies which were engaged in the same line of business of production and supply of electricity. The Tribunal brushed aside these example by stating that they were not comparable with the Board. In taking this view, we do not think that the Tribunal committed an error. In Williamsons (India) Private Ltd. vs Its Workmen(1), this Court clearly laid down what criteria had been established for considering what are comparable concerns when dealing with a question of wage fixation. It was held : "This Court has repeatedly observed that, in considering the question about comparable concerns, tribunals should bear in mind all the relevant facts in relation to the problem. The extent of the business carried by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reser ves, the dividends declared by them and the prospects about the future of their business these and all other relevant facts have to be borne in mind. " In the present case, it is clear that, if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board. As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas, but also include preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licen sees. The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them. The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns. The (1) [1962] 1 L.L.J.302. 183 supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns. Then, there is the important factor that the Board is running at a huge loss every year. The workmen did not provide figures to show what was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit. In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns, when dealing with the question of payment of dearness allowance by the Board. In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, it there be no such undertakings available, of undertakings in other industries in the Saurashtra region so as to enable the Saingh to claim wages on parity with those undertakings. We do not think that there is any justification for remanding the case for such a purpose at this stage. It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so. Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal. The further request that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, net losses has also no force, be cause, when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness box, no attempt was made on behalf of the Sangh to cross examine the deponent in order to establish that the losses had not been correctly represented. We do not think that, in these circumstances, any remand of this case is called for. It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry cum region basis; but that mistake does not justify any interference with the award which is otherwise correct and justified. The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of 184 the Board in the Gujarat Region as well as large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlement and only 466 employees had come forward with this demand without establishing that the demand wag restricted to bringing up their wages to the level of minimum wages. The appeal is dismissed, but we make no order as to costs. R.K.P.S. Appeal dismissed.

Over 9,000 employees of the Respondent Board, represented by seven Unions, demanded an increase in the dearness allowance payable to them, the payment of gratuity to some employees, and the calculation of pension payable to other employees after adding 50% of the dearness allowance. Six of the Unions representing the employees amicably settled the disputes with the Board which granted increases in dearness allowance on the other demands being given up. The seventh Union declined to accept the settlement and the dispute was eventually referred for adjudication by the Industrial Tribunal. Before the Tribunal took up the reference, all except 466 of the employees individually accepted the settlement. At the hearing of the reference it was contended by the remaining employees through the seventh Union that the total wage packet including the dearness allowance claimed by them would only satisfy the requirement of a minimum wage and the Board 's capacity to pay the increases demanded was, therefore, irrelevant; furthermore, although the Board was an industry in the public sector, it must also be made to pay wages on the same basis as private sector employers; two electric supply companies in ",the area were paving wages which were much higher and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the ,employees of those companies. The Tribunal in its award rejected all the workmen 's demands. It found that the demand for increased dearness allowance was not confined to achieving a minimum wage but as a result of its acceptance the wages would be above the minimum wage. The Tribunal also found that the Board having inherited an accumulated deficit of over Rs. 2 crores from its predecessor, the Bombay State Electricity Board, having sustained heavy losses in its working and having undertaken a further liability to pay increased dearness allowance, it had no capacity to undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance or to meet the other demands. The Tribunal held that the position in the other two electric supply companies was not comparable 'with the Board. In appeal to this Court against the award it was contended inter alia, that the Tribunal was wrong in judging the capacity of the Board after taking into account the deficit of Rs. 2 crores which it had inherited from its predecessor; and that the financial capacity of the Board should 174 175 have been judged only on the basis of its commercial undertaking excluding the activities of the Board which were in the nature of national duties. HELD : The Tribunal had rightly rejected the demands of the appellants. (i) As the appellants had failed to show that they would not be receiving the minimum wage with their basic pay and the increased dearness allowance offered by the Board, the financial capacity of the Board for acceding to the demands made became a relevant consideration. Hindustan Antibiotics Ltd. vs The Workmen & Others, ; and The Hindustan Times Ltd. vs Their Workmen, [1964] 1 S.C.R. 234 referred to. Although the deficit inherited by the Board from its predecessor could not be treated as a revenue loss for determining the Board 's financial capacity and was in the nature of a capital loss, even this loss could not be completely ignored. Apart from this, it was clear 'On the facts that during three years after its formation the Board had incurred heavy losses of about Rs. 110 lakhs and it did not, therefore, have the capacity of bearing the additional financial burden involved in meeting the appellants ' demands. [179 D F; 180 E] (ii) When the Board was constituted under the Electricity (Supply) Act No. 54 of 1948 and was, by its constitution, charged with the general duty of promoting the coordinated development of the generation, supply and distribution of electricity within the State, its capacity to bear the burden of paying wages to its employees had to be worked out after taking into account all the activities which the statute required it to carry on. The running of power houses was only one of the branches of those activities. The profit that the Board earned could only be worked out after including in the accounts all the expenditure incurred by it on all its development and other schemes for distribution of electricity to consumers in urban and rural areas. [181 B D] While an industry in the public sector was not exempt from application of principles which apply to an industry in the private sector and the respondent board must also be made to pay wages on the same basis as private sector employers the additional burden in either sector for paying anything above a minimum wage can only be justifiably imposed in industrial adjudication if the employer bad the capacity to meet that burden. [181 E F] The Tribunal had rightly held that neither of the other two electric companies were comparable with the Board. These two companies merely carried on the activity of direct supply of electricity to consumers in the towns and cities whereas the functions of the Board included the development and execution of schemes for supply of electricity to new areas. Williamsons (India) Private Ltd. vs Its Workmen , referred to.

ivil Appeal No. 1202 of 1974. From the Judgment and Order dated 19.7.1972 of the Madras High Court in Writ Petition No. 1064 of 1967. Anil Dev Singh and C.V.S. Rao for the Appellant. Ambrish Kumar and A.T.M. Sampath for the Respondent. The Judgment of the Court was delivered by K.N. SAIKIA, J. This appeal by Special Leave is from the Judgment and Order of the High Court of Judicature at Ma dras, dated 19th July, 1972 in Writ Petition No. 1864 of 1967, allowing the petition and quashing the demand made by the appellant under Rule 10 A of the Central Excise Rules, hereinafter referred to as 'the Rules ', payable by the respondent under the Central Excise and Salt Act, 1944, hereinafter referred to as 'the Act '. M/s. Ramakrishnan Kulwant Rai, the respondent firm, owned the Steel Rolling Mill, located at No. 4 B, 4 C, North Railway 447 Terminus Road, Royapuram, Madras 13. The said Mill was leased out to a partnership firm known as M/s. Steel Indus tries. After termination of the lease the respondent firm took back possession of the said Mill on 1 8 1962 and in formed the Central Excise Authorities about this by their letter dated 16 11 1962 and resumed manufacture of Steel from scraps and was advised to take out a licence for which it applied on 30 11 1962. Though the respondent firm had ultimately sold away the Rolling Mill on 8 4 1963, the Superintendent of Central Excise, by his letter dated 13 10 1965 demanded a sum of Rs. 31,0 18.2013 as excise duty. On information furnished by the firm about its manu facture of only 775.455 metric tonnes of Steel, the Deputy Superintendent of Central Excise reduced the demand to a sum of Rs. 6,4 19.38p only, and the demand was reiterated by notice dated 13 4 1967, pursuant whereto the respondent firm showed cause on 15th May, 1967 but the Assistant Collector of Customs, by his order dated 14th June, 1967, confirmed the demand. The respondent firm challenged the demand by moving writ petition No. 1864 of 1967 in the High Court of Judicature at Madras contending, inter alia, that it was manufacturing steel products prior to 13 6 1962, only suspending manufac ture during the period of lease and resuming thereafter, and as such, was entitled to exemption from payment of duty; that the demand for payment of duty was time barred; that rules 10 & 10A invoked in support of the demand were ultra vires inasmuch as there was no provision in the Act to enable the Government to frame rules for the recovery of duty short levied. The High Court by the impugned order following its earlier judgment in writ petition Nos. 265 & 266 of 1967, which relied upon its earlier decision in writ petition No. 1055 of 1968, upheld the contention of the respondent firm holding that Rule 10 A did not apply to cases where there had been no prior levy of excise duty in respect of the articles manufactured during the relevant period and that the duty was sought to be recovered only by the issue of demand under Rule 10 A of the Rules. The High Court having rejected leave to appeal, the. appellant obtained special leave on 23 7 1974. Mr. Anil Dev Singh, learned counsel for the appellant submits that it is necessary to decide the substantial question of law of general importance, namely, whether Rule 10 A of the Rules, as it stood at the relevant time, was valid or not as conflicting decisions have been creating difficulties for the department in collecting short levies or escaped excise duties. Counsel refers us to , AIR 1972 S.C. 448 2563, and The learned counsel states that Rule 10 A was in force upto 6 8 1977 whereafter it was amended with effect from that date and the amended rule continued till 16 11 1980 where after it was enacted as Section 11 A of the Act by the Amendment Act 25 of 1978 and that Section came into force with effect from 1.7 11 1980. Mr. Ambrish Kumar, the learned counsel for the respond ent submits that the learned standing counsel for the Cen tral Government having conceded that the rationale of the decision in Haji J.A. Kareem Sait vs Dy. Commercial Tax Officer, Mettupalayam, 18 STC .370, which held that sub Rule (7) of Rule 5 of the Central Sales Tax (Madras) Rules 1957, providing for limitation and determination of escaped turn over by best judgment was in excess of the rule making power and the sub Rule as a whole, was therefore, invalid, would apply with equal force to Rule 10 A as well and that in view of the same decision he would not be able to sustain the demands under Rule 10 A and yet he could sustain the demand under Rule 9(2) of the Rules, it is no longer open to the appellant to challenge the validity of Rule 10 A in this appeal, and that too after so many years. Counsel for the appellant answers that the learned standing counsel thereby cannot be said to have conceded that Rule 10 A was invalid. He had only said that in view of the decision in 18 STC 370, he would not be able to sustain the demands under Rule 10 A; and that even if it could be taken as a concession, the appellant could not be estopped from showing that the rule is valid so that Central Excise revenue is not allowed to escape. We agree with the learned counsel for the appellant and proceed to examine the validi ty of Rule 10 A as it stood at the relevant time. Rule 10 A of the Rules read as under: "10 A. Residuary powers for recovery of sums due to Government Where these Rules do not make any specific provision for the collection of any duty or any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall, on a written demand made by the proper officer, be paid to such person and at such time and place as the officer may specify. " Rule 10 A provided the machinery for collection of tax from the assessee after the goods had left the factory premises. This rule con 449 templated that the duty or deficiency in duty was payable on a written demand made by the proper officer in cases where either the Rules did not make any specific provision for the collection of any duty or of any deficiency in duty if the duty had for any reason been short levied. Therefore, before Rule 10 A could be resorted to, it had to be found that either the Central Excise Rules did not make any specific provision for the collection of duty in respect whereof a demand was being made by the proper officer, or that there was no specific provision therein for the collection of the deficiency in duty which had been short levied for any reason. It was a residuary provision and it applied only when there was no other specific provision in the Rules. Where there had been no assessment at all there was no reason why claim and demand of the respondent could not be said to be recoverable under Rule 10 A. The learned counsel for the appellant submits that this Rule is perfectly valid being covered by the rule making powers under the Act while the learned counsel for the respondent, submits that it is ultra vires the Act being not covered by its rule making powers. The question, therefore, is whether the Rule is valid. Chapter II of the Act deals with levy and collection of duty. Under Section 3 of the Act duties specified in First Schedule to the Act were to be levied. Sub section (1) of Section 3, at the relevant time, read as follows: "(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India, and a duty on salt manufactured in, or import ed by land into, any part of India as, and at the rates, set forth in the First Schedule. " In Citadel Fine Pharmaceuticals vs Dis trict Revenue Officer, Chingleput, , where the enactment, namely, the Medicinal and Toilet Preparations (Excise Duties) Act (XVI of 1955) was silent on the question of levies of escaped assessment, it was held that the Rules made under that Act could not extend the charging power and Rule 12, in so far as it sought to extend the charging power under Section 3 of that Act, was held to be invalid and without jurisdic tion. Rule 12 of those Rules read as follows: "12. Residuary powers for recovery of sums due to 450 Government Where these rules do not make any specific provision for the collection of any duty or of any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the collecting Government under the Act or these rules, such duty, deficiency in duty or sum shall on written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify. " Rule 12 was somewhat similar to RUle 10 A of the Rules and had been held to be ultra vires on the ground that it did not have the required statutory backing. In M/s. Agarwal Brothers vs The Union of India, , it was held that a licence issued under the Central Excise Rules was personal to the licensee and therefore, a transferee of factory licensed to manufacture iron and steel products from the former licensee could only be treated as a new licensee after the relevant date mentioned in the Notification No. 13 1 of 1962, dated 13th June, 1962, and as the petitioner applied for a licence much later, the exemption under the Notification was not available to the petitioner who could not be applying for renewal of the earlier licence held by the transferors and hence the exemption under the Notifica tion was not available to the petitioner. Demand, therefore, could only be made under Rule 10 A which, it was held, could not be invoked in view of the decisions in W.P. No. 1053/68, namely the Citadel Fine (supra). A Division Bench of Kerala High Court in Kerala Poly thene vs Superintendent, Central Excise, since reported in , held that Rule 10 A of the rules was not ultra vires the rule making power conferred by the Act on the Central Government. Balakrishna Eradi, J., as he then was, observed that the scope of the rule making power con ferred by Section 3(1) of the Act was wide enough to embrace all matters relating to the manner in which both the levy and the collection of duties of excise on all excisable goods other than salt were to be made. The provision con tained in Rule 10 A was thus fully within the scope of the said power and hence it was not correct to say that Rule 10 A was ultra vires the rule making power conferred by the Act on the Central Government. The cases of Agarwal Brothers (supra) and Citadel Fine Pharmaceuticals (supra) were dis tinguished pointing out that there was much difference in scopes of Section 3 of the Medicinal and Toilet Preparations (Excise Duties) Act (XVI of 1955) and of Section 3 of the Act. Comparing the provisions of the two Sections it was observed that there was funda 451 mental difference in their policy and scheme. Under Section 3 of the Medicinal and Toilet Preparations Act only the manner of collection of the duties was left to be prescribed by the rules and levy of the duty was to be made at the rates specified in the Schedule to the Act. In enacting Section 3 of the Act i.e. Central Excise and Salt Act, the Parliament had empowered the rule making authority to pre scribe by rules the manner of levy of duties and also the manner of collection of duties of excise on all excisable goods other than salt. Manifestly the rule making power conferred by this Section is very much wider in its ambit than the power conferred on the rule making authority under Section 3 of the Medicinal and Toilet Preparations (Excise Duties) Act whereunder only the manner of collection of duties could be laid down by rules. We respectfully agree with this view. We also find that in Agarwal Brothers (supra) though one of the questions raised was the validity of Rule 10 A of the Rules, the Court did not consider the said question on merits in view of the submission made by the standing counsel for the State Government on the basis of Rule 10 A in the light of the earlier decisions of the same High Court, striking down Rule 12 of the Medicinal and Toilet Preparations (Excise Duties) Rules. That decision can not obviously be regarded as authority supporting the con tention that Rule 10 A was ultra vires the rule making power. We find that Rule 10 A, was incorporated because of the decision of the Nagpur High Court in Messrs Chhotabhai Jethabhai Patel vs Union of India, After that decision the Central Government by a notifica tion, dated December 8, 195 1, amended the Rules by addition of the new Rule 10 A. The assessee challenged the validity of the Rule but a full bench of the Nagpur High Court re jected the assessee 's contention and held that Rule 10 A covered a case for increased levy on the basis of a change of law. That decision was challenged before this Court unsuccessfully. This Court in Chhotabhai Jethabhai Patel and Co. vs The Union of India, ; , reject ed the assessee 's claim regarding non applicability of Rule 10 A stating that it had been specifically designed for the enforcement of a demand like the one in that case. We also find that in N.B. Sanjana vs Elphinstone Spin ning and Weaving Mills Company Ltd., [2971] 1 SCC 337, while holding that Rule 10 A did not apply to the facts of that case, this Court observed that Rule 10 A did not apply as the specific provision for collection of duty in a case like that was specially provided for by Rule 10 and, therefore, action should have been taken under that Rule. 452 In Assistant Collector vs National Tobacco Co. Ltd., ; , this Court held that the High Court erroneously refused to consider whether the impugned notice in that case fell under Rule 10 A. It was observed that Rules 10 and 10 A seemed to be so widely worded as to cover any inadvertance, error etc.; whereas Rule 10 A would appear to cover any deficiency in duty if the duty had, for any reason, been short levied, except that it would be outside the purview of Rule 10 A if its collection was expressly provided by any Rule. It was further observed that both the Rules as they stood at the relevant time dealt with collec tion and not with assessment and what was said in N.B. Sanjana 's case (supra) that Rule 10 A was of residual in character and would be inapplicable if a case fell within a specified category of cases mentioned in Rue 10, was reiter ated. In D.R. Kohli vs Atul Products Ltd., [1985] 2 S.C.R. 832, this Court pointed out the differences between the two Rules namely Rule 10 and Rule 10 A as: "(i) whereas Rule 10 applies to cases of short levy through inadvertence, error, collusion or misconstruction on the part of an officer, or through mis statement as to the quantity, the description or value of the excisable goods on the part of the owner, Rule 10 A was a residuary clause applied to those cases which were not covered by Rule 10 and that; (ii) whereas under Rule 10, the deficit amount could not be collected after the expiry of three months from the date on which the duty or charge was paid or adjusted in owner 's account current or from the date of making the refund, Rule 10 A did not con tain any such period of limitation. " It would thus be clear that this Court interpreted Rule 10 A, distinguished it from Rule 10 and applied it to the appropriate facts and circumstances of different cases. It would be reasonable to infer that in none of the cases any doubt about the validity of the Rule 10 A was entertained. We may now examine the contention that at the relevant time Rule 10 A was not covered by the rule making power conferred on the Central Government by Section 37. Section 37 dealt with power of Central Government to make Rules. Sub section (1) said: "The Central Government may make rules to carry into effect the purposes of this Act." Sub section (2) enumerated the matters the rules might provide for 'in particular ' and "without prejudice to the generality of the foregoing power." Thus, the section did not require that the enumerated rules would be exhaustive. Any rule if it could be shown to have been made "to carry into effect the pur poses of the Act" would 453 be within the rule making power. Chapter II of the Act dealt with the levy and collection of duty. Section 3 as it stood at the relevant time provided that duties specified in the First Schedule were to be levied. We have quoted Sub section (1). The First Schedule contained Item Nos. description of goods and rates of duty. Section 3 has subsequently been amended by the Finance Acts of 1982 and 1984, and the Cen tral Excise Tariff Act of 1985. This section, it would be seen, expressly empowered the levy and collection of duties of excise on all excisable goods as provided in the Act including its First Schedule. It could not, therefore, be said that Rule 10 A was not covered by the above provision. It is an accepted principle that delegated authority must be exercised strictly within the limits of the authori ty. If rule making power is conferred and the rules made are in excess of that power the rules would be void even if the Act provided that they shall have effect as though enacted in the Act as was ruled in State of Kerala vs K.M. Charia Abdullah & Co., ; Therein the High Court having declared rule 14 A of the Madras General Sales Tax Rules, 1939 as ultra vires, on appeal, this Court by majori ty held that the validity of the rule, even though it was directed to have effect as if enacted in the Act, was always open to challenge on the ground that it was unauthorised. The validity of the delegated legislation is generally a question of vires, that is, whether or not the enabling power has been exceeded or otherwise wrongfully exercised. Scrutinising the provisions of Rule 10 A in the light of the above principles and pronouncements of this Court, we have no doubt that Rule 10 A of the Rules, as it existed at the relevant time, was valid and not ultra vires the rule making power. Demand notices lawfully issued under the rule by the competent authority could not, therefore, be challenged on the ground of the rule 10 A itself being ultra vires. Wheth er those could be challenged on any other ground must neces sarily depend on the facts and circumstances of the case. The High Court having proceeded on the basis that Rule 10 A was not available to support the demand notice, we set aside the impugned order of the High Court, allow the ap peal, and remand the case to the High Court for disposal in accordance with law. We leave the other questions open. Under the peculiar facts and circumstance of the case, we leave the parties to bear their own costs. Y. Lal Appeal al lowed.

Respondent firm owned a Steel Rolling Mill situate at Madras. The said mill was leased out to a partnership firm viz., M/s. Steel Industries and after the expiry of the lease period, the Respondent took back the possession of the Mill on 1.8.1962 and informed the Central Excise Authori ties, who advised the Respondent to take out a licence for which it applied on 30.11.1962 Respondent sold away the Rolling Mill on 8.4.1963. The Superintendent of Central Excise by his letter dated 13.10.1965 raised a demand of Rs.31,018.20 p. on the respondent on account of excise duty. The Respondent having informed the Department that the firm had manufactured only 775.455 metric tonnes of steel, the demand of excise duty was reduced to Rs.6,419.38 p. only. The Respondent, though pleaded that it was not liable to pay excise duty demanded, yet the Assistant Collector of Customs by his order dated 14.6.1967 confirmed the demand. The Respondent firm challenged the validity of the demand by filing a Writ Petition in the High Court. Respond ent contended before the High Court that (i) it was entitled to exemption of duty; (ii) that the demand for payment of excise duty was time barred and (iii) that Rules 10A under which the demand has been made are ultra rites as there was provision in the Act to enable the Government to frame rules for the recovery of duty short levied. The High Court allowed the Writ Petition and upheld the contention advanced by the Respondent holding that Rule 10A did not apply to cases where there has been no prior levy of excise duty in respect of the articles manufactured during the relevant period. Hence this appeal by the Department. 445 The question that arose for determination by this Court was whether Rule 10A of the Rules, as it stood at the rele vant time, was valid? Counsel for the appellant wile plead ing that the Rule was valid submitted that it was necessary to decide this question in view of the conflicting decisions creating difficulty for the Department in collecting short levies or escaped excise duty. Counsel referred to decisions reported in 1972(2) MLJ 476; ; ; ; and 1977(2) Tax L.R. 1680. Counsel for the Respondent urged that the Standing Counsel for the Central Government had conceded the ration ale of the decision in Haji J.A. Kateera sait vs Dy. Commer cial Tax Officer, Mettupalayam;, 18 STC 370 which held that Sub Rule (7) of Rule S of the Central Sales Tax (Madras) Rules 1957 was in excess of the rule making power and as such the Sub rule as a whole was invalid. In view of the said decision, the appellant would not be able to sustain the demand under Rule 10A; and it is no longer open to the appellant to challenge the validity of Rule 10A in the appeal. Allowing the appeal and remanding the matter to the High Court, Court, HELD: Chapter II of the Act deals with levy and collec tion of duty. Under Section 3 of the Act, duties specified in First Schedule to the Act were to be levied. Rule 10A provided the machinery for collection of tax from assessee after the goods had left the factory premises. This rule contemplated that the duty or deficiency in duty was payable on a written demand made by the proper officer in cases where either the rules did not make any specific provision for the collection of any duty or of any deficiency in duty, if the duty had for any reason been short levied. It was a residuary provision and it applied only when there was no other specific provision in the Rules. Where there had been no assessment at all there was no reason why claim and demand of the Respondent could not be said to be recoverable under Rule 10A. [449E; 448H; 449B C] The validity of the delegated legislation is generally a question of vires, that is, whether or not the enabling power has been exceeded or not. Rule 10A as it existed at the relevant time, was valid and not ultra vires the rule making power. Demand notice lawfully issued under the rule by the competent authority could not, therefore, be chal lenged on the ground of the Rule 10A itself being ultra vires. Whether these could be challenged on any other ground must necessarily depend on the facts 446 and circumstances of each case. [453E F] Kerala Polythene vs Superintendent Central & Excise, M/s. Chhotabhai Jethabhai Patel vs Union of India, Stateof Kerala vs K.M. Charie Abdullah & Co., [1965] 1 S.C.R.601. Any rule if it could be shown to have been made 'to carry into, effect the purposes of the Act ' would be within the rule making power. [452H; 453A] Citadel Fine Pharmaceuticals vs District Revenue Offi cer, Chingleput, ; M/s. Agarwal Brothers vs Union of India, ; N.B. Sanjane vs Elphin stone Spinning and Weaving Mills Company Ltd., ; Assistant Collector vs National Tobacco Co. Ltd., ; and D.R. Kohli vs Atul Products Ltd., ; , referred to.

vil Appeal Nos. 182 1 to 1826 of 1971 etc. From the Judgment and Order dated 11.8.1971 of the Madras High Court in Writ Petition Nos. 3818, 4019, 4020, 4254, 4566 of 1968 and 82 of 1969. section Padmanabhan, K.R. Nambiar, A.T.M. Sampath for the Appellants and Appellant in person in C.A. No. 2062 of 1971. K. Rajendra Chowdhary and V. Krishnamurthy for the Respondent. The Judgment of the Court was delivered by SHARMA, J. The question involved in these appeals relates to the vires of the Tamil Nadu Private Educational Institutions (Regulation) Act, 1966, hereinafter referred to as the Act. The appellants are interested in running educa tional institutions, which are covered by the expression "private educational institution" within the meaning of section 2(f) of the Act. The main challenge is directed against sections 2(c), 3(a), 3(b), 6, 7 read with sections 15, 22 and 28. The High Court struck down section 28 and upheld the other sections. That part of the judgment where section 28 374 has been declared to be invalid has not been impugned by the respondent State. The provisions of the Act which are relevant for appreciating the ground urged by the appellants are as follows. Section 3 mandatorily requires a private education al institution to obtain the permission of the competent authority for the purpose of running it. The Manager of such an institution has to, as required by section 4, make an applica tion for permission in the prescribed form accompanied by a fee. Section 6 lays down the power of the competent authori ty to deal with such an application in the following terms: "6. Grant of permission. On receipt of an application under Section 4 the compe tent authority may grant or refuse to grant the permission after taking into considera tion, the particulars contained in such appli cation: Provided that the permission shall not be refused under this Section unless the applicant has been given an opportunity of making his representation: Provided further that in case of refusal of permission the applicant shall be entitled to refund to one half of the amount of the fee accompanying the application. The competent authority is empowered under section 7 to cancel the permission in certain circumstances. One of the condi tions for exercise of power is contravention of any direc tion issued by the competent authority under section 15. The power to exempt any institution from the provisions of the Act is vested in the State Government under section 22, which is quoted below: "22. Power to exempt Notwithstand ing anything contained in this Act, the Gov ernment may, subject to which conditions as they deem fit, by notification exempt any private educational institution or class of private educational institutions from all or any of the provisions of this Act or from any rule made under this Act. " Section 28, which has been declared invalid by the High Court, states that if any difficulty arises in giving effect to the provisions of this Act, the Government may "do any thing which appears to them to be necessary for the purposes of removing the difficulty. " 375 3. The Act is impugned on the ground that it does not lay down any guide line for the exercise of the power by the delegated authority, as a result of which the authority is in a position to act according to his whims. The Act having failed to indicate the conditions for exercise of power, the decision of the competent authority is bound to be discrimi natory and arbitrary. It has also been argued that the restrictions put by the Act on the appellants, who are running tutorial institutions are unreasonable and cannot be justified under sub clause (g) of Article 19(1) of the Constitution. The learned counsel appearing for the respondent has attempted to defend the Act on the ground that sufficient guidance is available to the authority concerned from sub section (2)(c) of section 4 which enumerates the particulars required to be supplied in the application for permission. They are 10 in number and are mentioned below: "4. Application for permission. (1) . . . . (2) Every such application shall (a) . . . . . (c) contain the following particulars, namely: (i) the name of the private educa tional institution and the name and address of the manager; (ii) the certificate, degree or diploma for which such private educational institution prepares, trains or guides or proposes to prepare, train or guide its stu dents or the certificate, degree or diploma which it grants or confers or proposes to grant or confer; (iii) the amenities available or proposed to be made available to students; (iv) the names of the members of the teaching staff and the educational qualifica tions of each such member; 376 (v) the equipment, laboratory, library and other facilities for instructions; (vi) the number of students in the private educational institution and the groups into which they are divided; (vii) the scales of fees payable by the stu dents; (viii) the sources of income to ensure the financial stability of the private educational institution; (ix) the situation and the descrip tion of the buildings in which such private educational institution is being run or is proposed to be prescribed; (x) such other particulars as may be pre scribed. The point dealing with legislative delegation has been considered in numerous cases of this Court, and it is not necessary to discuss this aspect at length. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. What is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays down ade quate guide lines for the exercise of power. When examined in this light the impugned provisions miserably fail to come to the required standard. The purpose of the Act is said to regulate the pri vate educational institutions but does not give any idea as to the manner in which the control over the institutions can be exercised. The Preamble which describes the Act "for regulation" is not helpful at all. Learned counsel for the State said that the Object and the Reasons for the Act are to eradicate corrupt practices in private educational insti tutions. The expression "private educational institution" has been defined as meaning any college, school or other institution "established and run with the object of prepar ing, training or guiding its students for any certificate, degree or diploma", and it can, therefore, be readily in ferred that the purpose of the Act is to see that such institutions do not exploit the students; and while they impart training and guidance to the students of a standard which may effectively improve their knowledge so as to do well at the examination, they do not charge exhorbitantly for their services. But the question is as to how this objective can be achieved. Section 6 which empowers the competent 377 authority to grant or refuse to grant the permission for establishing and running an institution does not give any idea as to the conditions which it has to fulfil before it can apply for permission under the Act, nor are the tests indicated for refusing permission or cancelling under section 7 of an already granted permission. The authority concerned has been left with unrestricted and unguided discretion which renders the provisions unfair and discriminatory. It was argued on behalf of the State that since an application for permission has to supply the particulars as detailed in section 4(2)(c) (quoted above in paragraph 4), the Act must be deemed to have given adequate guide lines. Special emphasis was given by the learned counsel on sub clauses (iii), (iv) and (v) of section 4(2)(c), which ask for information about the amenities for the students the equip ments, laboratory, library and other facilities for instruc tion and, the names of the teachers with their qualifica tions. It may be noted that the Act, beyond requiring the applicant to make a factual statement about these matters, does not direct the institution to make provisions for them (or for any or some of them) as condition for grant of permission. The maintenance of any particular standard of these heads are not in contemplation at all, although cer tain other aspects, not so important, have been dealt with differently in several other sections including section 4, 5, 9, 10 and 11. Section 4(2)(b) mandatorily requires the appli cant to pay the "prescribed" fee; section 5 gives precise direc tion regarding the name by which the institution is to be called; and section 9 about the certificates to be issued by it; and section 11 makes it obligatory to maintain accounts in the "prescribed" manner. But, there is no indication, whatsoev er, about the legislative policy or the accepted rule of conduct on the vital issue about the maintenance of academic standard of the institution and the other requirements relating to the building, library and necessary amenities for the students, as the Act is absolutely silent about the criteria to be adopted by the prescribed authority for granting or refusing permission. The rules which were made under section 27 in 1968 and called the Tamil Nadu Private Educa tional Institutions (Regulation) Rules, 1968, are not called upon to lay down any norm on these issues and naturally do not make any reference to these aspects. The result is that the power to grant or refuse permission is to be exercised according to the whims of the authority and it may differ from person to person holding the office. The danger of arbitrariness is enhanced by the unrestricted and unguided discretion vested in the State Government in the choice of "competent authority" defined in section (2)(c) in the following words: 378 "(c) "competent authority" means any person, officer or other authority authorised by the Government, by notification, to perform the functions of the competent authority under this Act for such area or in relation to such class of private educational institutions, as may be specified in the notification;" The only safeguard given to the applicant institution is to be found in the first proviso to section 6 which says that the permission shall not be refused unless the applicant has been given an opportunity of making his representation, but that does not by itself protect the applicant from discrimi natory treatment. So far section 7 dealing with power to cancel the permission granted earlier is concerned, no objection can be taken to the first part of the section, whereunder the permission may be cancelled in case of fraud, misrepre sentation, suppression of material particulars or contraven tion of any provision of the Act or the Rules. But the other ground on which the authority can exercise its power being contravention "of any direction issued by the competent authority under this Act" again suffers from the vice of arbitrariness. Section 15, the relevant section in this regard, states that "the competent authority may, from time to time issue such directions regarding the management of a private educational institution as it may think fit" (empha sis added). The section is too wide in terms without indi cating the nature of such direction or the extent within which the authority should confine itself while exercising the power. Similar is the situation in the matter of exemp tion from the Act. The power to grant exemption is contained in section 22, quoted in paragraph 2 above. The provisions of the Act indicate that the State Government has been vested with unrestricted discretion in the matter of the choice of the competent authority under section 2(2)(c) as also in picking and choosing the institutions for exemption from the Act under section 22. Such an unguided power bestowed on the State Government was struck down as offend ing Article 14 in the case of the State of West Bengal vs Anwar Ali Sarkar; , A similar situation arose in Kunnathat Thathunni Moopil Nair vs The State of Kerala and Another, ; , where, under section 4 of the Travancore Kochin Land Tax Act, 1955, all lands were sub jected to the burden of a tax and section 7 gave power to the Government to grant exemption from the operation of the Act. The section was declared ultra vires on the ground that it gave uncanalised, unlimited and arbitrary power, as the Act did not lay down any principle or policy for the guidance of exercise of the discretion in respect of the selection contemplated by section 7. 379 9. Similar is the position under sections 6 and 7 of the present Act. The learned counsel for the respondent State contended that by reference in section 4 to the particulars to be supplied. in the application for permission, it can be easily imagined that the competent authority has to take into account all that may be validly relevant for the grant or refusal of permission. We are afraid, the section cannot be saved by recourse to this argument in absence of any helpful guidance from the Act. The position in this case cannot be said to be on a better footing than that of the Gold (Control) Act, 1968, which was challenged in Harakchand Ratanchand Ranthia and Others vs Union of India and Other, ; As is indicated by the judgment, the Gold (Control) Act had to be passed as gold was finding its way into the country through illegal channels, affecting the national economy and hampering the country 's economic sta bility and progress, and the Customs department was found unable to effectively combat the smuggling. Section 27(6)(a) of the said Act stated that in the matter of issue or renew al of licences the "Administrator shall have regard to the number of dealers existing in the region in which the appli cant intends to carry on business as a dealer". The expres sion "region" was not defined in the Act and section 27(6)(b) required the Administrator to have regard to "the anticipat ed demand, as estimated by him, of ornaments in the region". The argument in support of the validity of the Act was that these provisions provided adequate guidance to the Adminis trator, which this Court rejected, holding that the expres sion "anticipated demand" was vague and not capable of objective assessment and, therefore, was found to lead to a great deal of uncertainty. The other provisions mentioning "suitability of the applicant" in section 27(6)(e) and "public interest" in section 27(6)(g) were also held to have failed in laying down any objective standard or norm so as to save the Act. The provisions of the act, with which we are dealing in the present cases, are far less helpful for the purpose of upholding its validity. For the reasons mentioned above, the impugned sec tions of the Act must be held to be invalid. These provi sions are inextricably bound up with the other parts of the Act so as to form part of a single scheme, and it is not possible to sever the other parts of the Act and save them. In the result, the entire Act is declared ultra vires. The appeal is accordingly allowed, but, in the circumstances, without costs. G.N. Appeal allowed.

The appellants are interested in running educational institutions which are covered by the expression "private educational institution" within the meaning of Section 2(f) of the Tamil Nadu Private Educational Institutions (Regula tion) Act, 1966. The vires of the Act especially sections 2(c), 3(a), 3(b), 6, 7, read with sections 15, 22 and 28, was challenged before the High Court, by way of a writ petition. The High Court struck down section 28 and upheld the other sections. This appeal by certificate is against the High Court 's judgment upholding the validity of the said sections. As regards the striking down of section 28, it has not been impugned by the respondent State. The appellants contended that the Act does not lay down any guideline for the exercise of power by the delegated authority and so the decision of the competent authority is bound to be discriminatory and arbitrary. It was also con tended that the Act imposed unreasonable restrictions on the appellants in the running of tutorial institutions, and such regulations were violative of Article 29(1)(g) of the Con stitution of India. On behalf of the respondent, it was stated that suffi cient guidance is available to the authority concerned, by virtue of subsection (2)(c) of Section 4 and hence the appellants ' contentions were not justified. 372 Allowing the appeal, HELD: 1.1. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. What is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays down adequate guidelines for the exercise of power. Examined in this light, the impugned provisions of the Tamil Nadu Private Educational Institutions (Regulation) Act, 1966 miserably fail to come to the required standard. These sections are held to be invalid. They are inextricably bound up with the other parts of the Act so as to form part of a single scheme, and it is not possible to sever the other parts of the Act and save them. Hence, the entire Act is declared ultra vires. [376D E; 379G] 1.2. There is no indication, whatsoever, about the legislative policy or the accepted rule of conduct on the vital issue about the maintenance of academic standard of the institution and the other requirements relating to the building, library and necessary amenities for the students, as the Act is absolutely silent about the criteria to be adopted by the prescribed authority for granting or refusing permission. Even the rules which were made under Section 27 in 1968 and called the Tamil Nadu Private Educational Insti tutions (Regulation) Rules, 1968, are not called upon to lay down any norm on these issues and naturally do not make any reference to these aspects. The result is that the power to grant or refuse permission is to be exercised according to the whims of the authority and it may differ from person to person holding the office. The danger of arbitrariness is enhanced by the unrestricted and unguided discretion vested in the State Government under Section 2(c) of the Act in the choice of competent authority. [377E G] 2.1. Section 6 which empowers the competent authority to grant or refuse to grant permission for establishing and running an institution does not give any idea as to the conditions which it has to fulfil before it can apply for permission under the Act, nor are the tests indicated for refusing permission or cancelling under Section 7 of an already granted permission. [376H; 377A] 2.2. The only safeguard given to the applicant institu tion is to be found in the first proviso to Section 6 which says that the permission shall not be refused unless the applicant has been given an opportunity of making his repre sentation, but that does not by itself protect the applicant from discriminatory treatment. So far as Section 7 dealing with 373 power to cancel the permission granted earlier is concerned, no objection can be taken to the first part of the section, whereunder the permission may be cancelled in case of fraud, misrepresentation, suppression of material particulars or contravention of any provision of the Act or the Rules. But the other ground on which the authority can exercise its power being contravention "of any direction issued by the competent authority under this Act" again suffers from the vice of arbitrariness. [378B D] 2.3 Section 15 is too wide in terms and does not indi cate the nature of the direction or the extent within which the authority should confine itself while exercising the power. Similarly under Section 22, the State Government has been vested with unrestricted discretion in picking and choosing the institutions for exemption from the Act. [378D E] State of West Bengal vs Anwar Ali Sarkar, ; ; Kunnathat Thathunni Moopil Nair vs The State of Kerala and Anr., ; ; Harakchand Ratanchand Banthia and Ors. vs Union of India & Ors. , ; , relied on.

Appeal No. 4474 of 1992. From the Judgment and order dated 28.7.1992 of the Andhra Pradesh High Court in W.P. No. 9315 of 1992. WITH WRIT PETITION (CIVIL) NO. 763 OF 1992. (Under Article 32 of the Constitution of India) A.K. Ganguli, Rakesh K. Khanna for R.P. Singh for the Appellant/ Petitioners. C. Sitaramiah, Ms. Pushpa Reddy and Mrs. T.V.S. Narasimhachari for the Respondents. J. CIVIL APPEAL NO. 4474 OF 1992. The appellant is engaged in the manufacture and sale of products like cast iron pipes, man hole covers, bends etc. For the assessment year 1989 90, the Commercial Tax Officer, Narayanguda Circle, Hyderabad levied sales tax upon the turn over relating to said products treating them as general goods. He overruled the petitioner 's contention that the said products are declared goods liable to tax at the rate of 4% only. The assessees ' appeal preferred before the Appellate Deputy Commissioner is still pending. Evidently because no stay was granted pending the said appeal, a notice was issued to the appellant calling upon him to pay the tax assessed, against which notice he preferred a writ petition, being W.P. No. 9315 of 1992, in the High Court of Andhra Pradesh. His main contention in the writ petition was that by virtue of G.O.Ms. No. 383 Revenue (S) Department dated 17.4.1985, his products are 'declared goods ' and are, therefore, liable to tax only @4%. The Division Bench of the High Court dismissed the writ petition following its earlier decision in Deccan Engineers vs State of Andhra Pradesh (reported in 1991, Vol. 12 A.P. Sales Tax Generals, 138: 84 STC 92). In Deccan Engineers, it was held by the A.P. High Court that the expression ' cast iron ' in item(2)(i)of the Third Schedule to the Andhra Pradesh General Sales Tax Act does not include cast iron pipes, man hole covers and bends etc. In this appeal, the correctness of the said view is questioned. Third Schedule to the Andhra Pradesh General Sales Tax Act pertains to 436 "declared goods in respect of which a single point tax only is leviable under section 6". Section 6 was enacted by the A.P. Legislature.to accord with sections 14 and 15 of the . Item(2) of the third Schedule to the A.P. Act reads as follows: THIRD SCHEDULE (As amended upto 15th August 1987) Declared goods in respect of which a single point tax only is leviable under Section 6. Description of goods Points of levy Rate of Tax (1) (2) (3) (4) (1) . . . . (2) Iron and steel, that is do *4 do to say; (3002) (i) pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap; (ii) steel sends (ingots, slabs, blooms and billets of all qualities, shapes and sizes); (iii)skelp bars, tin bars, sheet bars, hoe bars and sleeper bars; (iv) steel bars (rounds, rods, squares, flats, octagons and hexagons; plain and ribbed or twisted; in coil form as well as straight length); (v) steel structurals (angles, joints, channels, tees, sheet pilling sections. Z sections or any other rolled sections); (vi) sheets, hoops, strips and skelp, both black and galvanised, hot and cold rolled, plain and corrugated in all qualities, in straight lengths and in coil form, as rolled and in revitted condition; (vii)plates both plain and chequered in all qualities; (viii)discs, rings, forgoings and steel castings; (ix) tool, alloy and special steels of any of the above categories; (x) steel melting scrap in all forms including steel skull, turnings and borings, (xi) steel tubes, both welded and seamless, of all diameters and lengths,including tube fittings; (xii)tin plates, both not dipped and electrolytic and tin free plates; (xiii)fish plate bars, bearing plate bars,crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails heavy and light crane rails; (xiv)wheels, tyres, axles and wheel sets; (xv) wire rods and wires rolled, drawn, galvanised, aluminised, tinned or coated such as by copper; (xvi)defectives, rejects, cuttings or end pieces of any of the above categories. Item (2) of the Third Schedule to the A.P. Act is an exact replica of item (iv) of section 14 of the . According to section 15 of the Central Act, 'declared goods ' cannot be taxed at a rate exceeding 4% or at more than one stage. The pracise question that was considered in Deccan Engineering (followed in the judgment under appeal) was whether the 'cast iron castings ' manufactured by the petitioner in that case are cast iron 'within the meaning of item (2) (i) of the Third Schedule to the A.P. Act/ Item (iv) (i) of section 14 of the C.S.T. Act. At this stage, it is necessary to a certain precisely what does 'cast iron ' mean and how are the products of the appellant manufactured. 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould". According to New Lexicon Webster 's dictionary of English language, the word ,cast iron ' means "an iron carbon alloy produced in a blast furnace. It contains upto 4% carbon, and is more brittle, but more easily fused, than steel. " According to Van Nostrand 's Scientific encyclopedia, 'cast iron ' is "primarily the product of remelting and casting pig iron". (Interestingly, the expression 'cast iron ' with a hyphen between 'cast ' and 'iron ' has been defined separately as meaning "made of cast iron". So far as item (iv) of section 14 is concerned, the official publication spells the expression cast iron ' without a hyphen. Though an authorised publication of the A.P. Act is not placed before us, we presume that the printing of the said expression in the private publication placed before us represents the correct rendering it is without a hyphen.) That 'cast iron ' is different from 'cast iron 438 castings ' is brought out in the following extract from the Judgment in 'Deccan Engineering ', which is equally true in the case of the appellant as well: .LM15 "The assessee manufacturers and sells various goods mentioned earlier made from cast iron which has suffered sales tax. The controversy is whether these several goods sold by the petitioners continue to be the same declared goods covered by the aforesaid entry or are different commercial commodity liable to levy of State Sales Tax. The case of the Revenue is that, items sold by the petitioner are, therefore, exigible to tax as a distinct commercial commodity. It is contended by the learned counsel for the assessee that the relevant entry in section 14 of the Central Act also IIIrd Schedule of the State Act speak of cast iron including ingots, moulds and bottom plates, iron scrap etc. which indicates that any casting made out of cast iron also should be treated as included in the entry because of the word used 'including ' in the entry. It is further contended that the Government of India in their letters have clarified that cast iron castings are covered by cast iron and the State Government has also issued the aforesaid G.O. subsequently under Section 42(2) of the State Act clarifying that the cast iron castings are covered within the term cast iron. " It is thus clear that 'cast iron ' is different from 'cast iron castings ' manufactured by the appellant. 'Cast iron ' is purchased by the appellant and from that ' cast iron ', he manufactures several goods, like manhole covers, bends, cast iron pipes, etc. In other words, 'cast iron ' used in item (iv) of section 14 of the Central Act is the material out of which the petitioner 's products are manufactured. Position remains the same, even if the appellant purchases iron and mixes it with carbon and silicon thereby deriving 'cast iron ' and then pours it into different moulds. In sum, 1 cast iron ' is different from the cast iron pipes, manhole covers, bends etc, manufactured and sold by the appellant. It cannot be denied, in such a situation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron. Indeed this aspect is not seriously disputed by Shri Ganguli, the learned counsel for the appellant. His case is entirely based upon certain clarifications and circulars issued both by the Central and State Governments and in particular upon an order issued by the Andhra Pradesh Government under section 42(2) of the A.P. Act namely viz., G.O. Ms. No. 383 dated 17.4.1985. It is, therefore, necessary to refer to them. The earliest clarification is the one contained in the latter dated 28th February, 1977 from the Department of Revenue and Banking (Revenue Wing) 439 Government of India addressed to the Finance/Revenue Secretaries of all State Governments and Union Tarritories. It reads thus: "Subject:Clarification as to whether the term ' Cast Iron ' mentioned in section 14(iv) (i) of the would cover cast Iron casting. In continuation of the marginally noted communications and with reference to this Department 's letter No. 24/3n3 ST. 20.11.1973, I am directed to say that the question whether the expression 'cast iron ' used in Section (iv) (i) of the will include ' Cast iron casting ' has been re examined in consultation with the Directorate General of Technical Development, Chief Chemist and the Ministry of Law, Justice & Company Affairs. This Department has been advised that the existing expression 'cast iron ' in the aforesaid section will cover 'cast iron casting also Yours faithfully, Sd/ Deputy Secretary,to the Govt. of India. " Pursuant to the above clarification by the Central Government, the Commissioner of Commercial Taxes, Government of Andhra Pradesh intimated all the Deputy commissioners of commercial Taxes of the State that "Cast Iron Pipes and specials should be subjected to tax as falling under "Cast Iron" liable to tax @4% at the point of first sale in the State under entry 2 of the III Schedule of A.P.G.S.T. Act. " To the same effect is another clarification issued by the Commissioner of Commercial Taxes, Government of Andhra Pradesh to his subordinate officials on 12.3.1982. The next clarification from the Government of India was on 3 1st January, 1984. It appears that the Government of Haryana had written to the Central Government stating that 'cast iron castings ' cannot be treated as declared goods and requested the Ministry of Finance, Government of India to examine the same. It was in reply to the said query that the letter dated 3 1st January, 1984 was written by the Government of India, Ministry of Finance, Department of Revenue to the Financial Commissioner and Secretary, Government of Haryana, Excise and Taxation Department. The letter says that the matter has been considered carefully by the Department in consultation with the Ministry of Law and the Director 440 General of Technical Development. It set out the opinion of the Ministry of Law as also the opinion of the Director General of technical Development. The latter 's opinion reads: "Cast iron is an alloy iron of Carbon silicon and other alloying elements if required i.e. Cast Iron Castings are covered under the term Cast Iron '. It may also be clarified that ' cast Iron ' include Gray Iron, Chilled Malleable and Nodular Iron. Ingot Moulds and Bottom Plates are nothing but Cast Iron Castings". After setting out the said two opinions, the Government of India expressed its opinion in the following words: "In accordance with the above advice, cast iron castings are covered under the term "Cast Iron. . . . State Government may kindly bring this position to the notice of Sales Tax authorities of the State. If considered necessary this may be placed before the Committee of Commissioners of Sales Tax Commercial Tax set up under this Ministry 's letter No. Receipt of this letter may please be acknowledged. Copies of this letter were communicated to all the State Governments and Admissions of Union Territories. On 20th July, 1984 the Government of Andhra Pradesh, Revenue (S) Department issued a memorandum referring to the aforesaid letter of the Central Government dated 31st January, 1984 and reaffirming that " 'Cast Iron Castings ' are covered within the item Cast Iron including ingot ' in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act". On the same day the Principal Secretary,to the Government, Revenue Department addressed a letter to the Secretary, Andhra Pradesh Small Scale Industries Association, Vijayawada informing the Association that "a clarification has been issued to the Commissioner of Commercial Taxes to the effect that "cast iron castings" are covered within the term "cast iron including ingot" in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957. " On 27th March, 1984, however, the Commissioner of commercial Taxes, Government of Andhra Pradesh addressed a letter to all his subordinate officers stating that the question whether 'cast iron castings ' fall within the expression, 441 `cast iron ' is pending before the High Court of Andhra Pradesh and, therefore, the collection of arrears of tax due on 'raw castings ' is stayed for a period of one year. At the end of one year, he said, the matter will be reexamined. On 17th April, 1985 the Government of Andhra Pradesh issued a clarification contained in G.O.Ms. No. 383 under sub section (2) of section 42 of the A.P. Act. It will be appropriate to set out the G.O. in full: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Andhra Pradesh General Sales Tax Act, 1957 Levy, of Sales Tat on 'Cast Iron Casting ' Clarification issued. REVENUE (S) DEPARTMENT. G. O. Ms. No. 383. Dated 17.04.1985 Read the followings: 1. 2216/SI/83 4. 20.7.84, 2. No. 2216/83 4, dt. 20.7.84 addressed to Secretary A.P. Small Scale Industries Association, Vijayawada 3. From the CCT 's Ref. D.O.FE.Lr. III (3) /1490/84, dt. 24.7.1984. Government Memo 3166/SI/84 4, dt. 13.11.1984. From the CCT.D.O. on CCT 'section Ref. LI/(i) /1063/82 6. Memo No. 3166/SI/84 5, dt. 22.2.1985. From the commissioner of Commercial Taxes, Ref. A3/LI/1093/82 dt. 19.3.1983. ORDER: The Andhra Pradesh Small Scale Industries Association Vijayawada requested the Government to clarify whether 'cast iron ' and 'cast iron castings ' are one and the same commercial commodity. 442 2. This matter was examined at length by the Government of India in consultation with Ministry of Law, (Department of legal Affairs) and Director General of Techinical Development. The Ministry of Finance, Department of Revenue, Government of India clarified, in their letter F.No. 24/10/80/ ST. dt. 31.1.1984. to the effect that "cast iron castings" are covered within the term "cast iron". Government have examined in detail the legal aspects of the issue and observe that the term "cast iron including ingot, moulds, bottom plates" as in sub item (i) of item 2 in the Third Schedule to the Andhra Pradesh Central Sales Tax covers "cast iron casting" and as such "cast iron castings" is not a different commercial commodity from the commodity "cast iron including ingot, moulds, bottom plates. Under sub section (2) of section 42 of the Andhra Pradesh General Seles Tax Act, 1957 the Government hereby clarify that the "cast castings" are covered within the term "cast iron including ingot, moulds, bottom plates" occurred in sub item (i) of item 2 of this Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957. (emphasis added) (BY ORDER IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) C.R. NAIR, PRINCIPAL SECRETARY TO GOVERNMENT." Section 42 of the A.P. Act confers upon the State Government the power to remove difficulties. Sub section (i) confers the said power to meet the problems arising from transition from the previous Sales Tax Act to the present Sales Tax Act. An order under sub section (1) is required to be published in the A.P. Gazette. Sub section (2) is general in nature. An order under sub section (2) is not required to be published in the A.P. Gazette. Section 42 reads: "42 Power to remove difficulties: (1) If any difficulty arises in giving effect to the provisions of this Act in consequence of the transition to the said provisions from the 443 corresponding provisions of the Acts in force immediately before the commencement of this Act, the State Government may, by order in the Andhra Pradesh Gazettle, make such provisions as appear to them to be neccessary or expedient for removing the difficulty. (2) If any difficulty arises in giving effect to the provisions of this Act (otherwise than in relation to the transition from the provisions of the corresponding Act in force before the commencement of this Act), the State Government may, by order make such provisions, not inconsistent with the purposes of this Act, as appear to them to be necessary or expedient for removing the difficulty. " An order issued under section 42, is undoubtedly statutory in character. A word about the validity of section 42 of the A.P.Act. Section 37 of the Payment of Bonus Act conferred a similar power upon the Central Government; it further declared that any such order would be final. It was truck down by a Constitution Bench of this Court in Jalan Trading Co. vs Mill Mazdoor Sabha ; as amounting to excessive delegation of legislative power. However. in a subsequent decision in Gammon India Limited etc. vs Union of India & Ors. etc. ; , it has been explained by another Constitution Bench that the decision in Jalan Trading was influenced by the words occuring at the end of section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final. Inasmuch as the said words are not there in section 34 of the , it was held, section 34 cannot be said to suffer from the vice of excessive delegation of legislative power. It is meant "for giving effect to the provisions of the Act," it was held. Sub section (2) of section 42 of the A.P. Act does no doubt not contain the aforesaid offending words, and can not therefore be characterised as invalid. Yet, it must be remembered that the said power can be exercised "for giving effect to the provisions of the Act", and not in derogation thereof. As we shall presently indicate it is necessary to bear this limitation in mind while examining the effect of G.O.Ms. 3,83. So far as clarifications kirculars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. IT is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was leviable according to law. , There can be no estoppel against the statute. the understanding of the Government, whether in favour or against the assessee, is 444 nothing more than its understanding and opinion. It is doubtful whether such clarifications and circulars bind the quasi judicial functioning of the authorities under the Act. While acting in quasi judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars. Law is what is declared by this Court and the High Court to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive. of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean. (See Sanjeev Coke Manufacturing Company vs Mls. Bharat Coking Coal Ltd. and another; , Now coming to G.O. Ms. 383, it is undoubtedly of a statutorily characterbut, as explained hereinbefore the power under section 42 cannot be utilised for altering the provisions of the Act but only for giving effect to the provisions of the Act. Since the goods manufactured by the appellant are different and distinct goods from cast iron, their sale attracts the levy created by the Act. In such a case, the government can not say, in exercise of its power under section 42 (2) that the levy created by the Act shall not be effective or operative. In other words, the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be. For doing that, the power of exemption conferred by section 9 of the A.P. Act has to be exercised. Though it is not argued before us, we tried to see the possibility but we find it difficult to relate the order in G.O. Ms. 383 to the power of the Government under section 9, apart from the fact that the nature and character of the power under section 42 is different from the one conferred by Section 9. As exemption under section 9 has to be granted not only by a notification, it is also required to be published in the Andhra Pradesh Gazette. It is not suggested, nor is it brought to our notice, that G.O. Ms. 383 was published in the Andhra Pradesh Gazette. This does not, however, preclude the Government of Andhra Pradesh from exercising the said power of exemption, in accordance with law, if it is so advised. We need express no opinion on that score. The learned counsel for the appellant brought to our notice that the very same Division Bench which rendered the decision in Deccan Engineers had rendered another decision in Tax Revision Case No. 93 of 1990 (The State of A.P. vs Pratap Steel) applying G.O. Ms. 383 and giving relief to the dealer. It is argued that the Division Bench ought to have taken the same view in Deccan Engineers as well. We have perused the decision in Pratap Steel. It is a short judgment dismissing the Revision applying G.O.Ms. 383. It does not appear that the matter was argued in the manner it was in Deccan Engineers. The said argument, therefore, cannot advance the case of the appellant. 445 In this view of the matter in is not necessary for us to go into the question wether the word including in section 14 (iv) (i) of and item (2) (i) of the Third Schedule to the A.P. Act has the effect of making the said subclause exhaustive or otherwise. Accordingly, we bold that the cast iron castings manufactured by the appellants do not fall within the expression 'cast iron ' in Entry 2(i) of the Third Schedule of the Andhra Pradesh General Sales Tax Act or within Section 14 (iv)(i) of the . The appeal accordingly fails and is dismissed. No order as to costs. W. P. No.763 OF 1992 This writ petition preferred under Article 32 of the Constitution is directed against the notices issued by the assessing authority proposing to reopen the assessments of the petitioner/appellant with respect to earlier assessment years and also seeking to apply the principle of Deccan Engineers to the pending assessments. For the reasons stated hereinabove this writ petition fails and is accordingly dismissed. No costs. G.S.B. Appeal and petition dismissed.

Section 6 of Andhra Pradesh General Sales Tax Act, 1957 provides a single point tax @ 4 % on declared goods, mentioned in the Third Schedule to that Act. Item (2) of the Third Schedule describes the articles made of Iron & steel which fall in the category of 'declared goods '; sub item (i) of Item (2) pertains to "pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap". 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould". On February 28,1977 the Department of Revenue & Banking (Revenue Wing) Government of India issued a letter to all Finance/ Revenue Secretaries of all State Governments and Union Territories, explaining the term 'Cast Iron ' mentioned in section 14 (iv) (i) of the . This letter said to have been issued in consultation with the Directorate General of Technical Development,_Chief Chemist and the Ministry of Law, Justice & Company Affairs, extended the scope of the expression 'cast iron ' to "cover 'cast iron casting ' also". Based on similar clarifications, the Department of Revenue (S) Department of the Government of Andhra Pradesh issued a clarificatory order under section 42(2) of the Act vide GOMs No. 383 dated April 17,1985 extending the scope of the expression 'cast iron ' to include "cast iron castings". This order was also published in the State 's official Gazette. Section 42 (2) of A.P. General Sales Tax Act empowers the State Government to make, by an order, such provisions as appear to them necessary & expedient to remove difficulty in the implementation of this Act, provided that these are not inconsistent with the provisions of the Act. The appellant manufactures and sells products like cast iron pipes,man 434 hole covers, etc. He claims that read with the above clarificatory orders, he is liable to pay only 4% sales Tax under Section 6 of the A.P. General Sales Tax ct But, for the assessment year 1989 90 the Commercial Tax Officer C.T.O.) Narayanaguda Circle, Hyderabad levied Sales Tax on the said products at the rate applicable to general goods. The C.T.O. having overruled the appellant 's contentions, the. latter appealed to the Appellate Deputy Commissioner. During the pendency of appeal a notice was issued to the appellant calling upon him to pay the tax assessed, since no stay has been granted in appeal. Against this notice the appellant filed a writ petition No. 9315 of 1992 in the High Court of Andhra Pradesh. The Division Bench of the High Court rejected the appellant 's main contention that his products were covered by Item (2) (i)of the Third Schedule to the A.P. General Sales Tax Act, and dismissed the writ petition. Vide Civil Appeal No. 4474 of 1992 (with Writ Petition(Civil) No. 763 of 1992). The appellant questions before this Court the above view of the High Court. Rejecting the appellant 's contentions and upholding the judgment and order of the High Court, this Court, HELD: Law is what is declared by this Court and the High Court. An executive authority can, at best, only opine its own understanding of the statute; such opinion is not binding upon the quasi judicial functioning of the authorities under the Act. (444 B) Sanjeev Coke Manufacturing Company vs M/s Bharat Cooking Coal lid. and another; , , referred to. The Government cannot use the powers, conferred by section 42 (2) of the A.P. General Sales Tax Act, to dispense with a levy created by the Act. (444D) The Van Nostrand 's Scientific Encyclopaedia treats 'cast iron ' 'and cast iron ' (with a hyphen) as two different words. The Act speaks of 'cast iron ' (that is without a hyphen between the two words) (437 G H) Hence, the expression 'castiron 'in Item (2) (i) of A.P. General Sales Tax Act does not include the products cast iron pipes, man hole covers, bends etc. (437 F) Deccan Engineers vs State of Andhra Pradesh. 1991 Vo. 12 A.P. Sales Tax Journal 138 referred to.

s Nos. 109 to 114, 117, 118, 120, 121, 128 to 133, 142, 143, 186, 190 and 191 of 1967. Petitions under article 32 of the Constitution of India for the enforcement of the fundamental rights. M.K. Ramamurthi, for the petitioners (in W. Ps. 109, 142 and 143 of 1967). section Shaukat Hussain, for the petitioners (in W. Ps. Nos. 110114 and 118 of 1967). Janardan Sharma, for the petitioners (in W. Ps. Nos. 117, 120, and 121 of 1967). R.C. Prasad, for the petitioners (in W. Ps. 128 133 of 1967) M.K. Ramamurthi and Vineet Kumar, for the petitioners (in W. Ps. Nos. 186, 190 and 191 of 1967). C.K. Daphtary, Attorney General, R.H. Dhebar and S.P. Nayar, for the respondent (in W. Ps. 109, 142 and 143 of 1967). G.R. Rajagopal, R.H. Dhebar and section P. Nayar, for the respondent (in W.P. No. 110 of 1967). R. Gopalakrishnan and section P. Nayar, for the respondent (in W. Ps. 111 to 114, 117, 118, 120, 121. 128 to 133, 186, 190 and 191 of 1967). The Judgment of WANCHOO, C.J., SHAH, BACHAWAT, MITTER and HEGDE, JJ. was delivered by WANCHOO, C.J., HIDAYATULLAH, J. delivered a separate Opinion. Wanchoo, C.J. These twenty one petitions under article 32 of the Constitution for a writ of habeas corpus raise common questions of law and will be dealt with together. It is enough to set out the facts in one of the petitions (No. 142 of 1967), for the facts in other petitions are almost similar. The petitioner was arrested on November 11, 1966 and detained under an order passed under r. 30(1)(b) of the Defence of India Rules, 1962 (hereinafter referred to as the Rules). It appears that though the order was reviewed after the period of six months, no opportunity was given to the petitioner to represent his case before the reviewing authority. In consequence the detention of the petitioner be came illegal after the first period of six months in view of the judgment of this Court in P.L. Lakhanpal vs Union of India(1). The State Government realising this defect, cancelled the order dated November 11, 1966 on August 3, 196 '7, and on the same day a fresh order of detention was passed and it is this order which (1) ; L 1O Sup CI/67 17 230 is being challenged before us. It is not in dispute that in view of the judgment of this Court in Jadev Singh vs State of Jammu and Kashmir(1), it was open to the State Government, in view of the formal defect in making the review, to pass a fresh order of detention after revoking the earlier order, which in any case became ineffective after the first six months, if the circumstances which led to the detention originally still continued. The main attack of the petitioners is on the order of the President passed on November 3, 1962, as amended on November 11, 1962, under article 359(1) of the Constitution. By this order the President declared that the right to move any court for 'the enforcement of the fundamental rights conferred by articles 14, 21 and 22 of the Constitution would remain suspended for the period during which the Proclamation of Emergency issued under article 352(1), was in force, if any person was deprived of such right under the Defence of India Ordinance (No. 4 of 1962) or any rule or order made thereunder. The argument in support is put this way. The President is an "authority" within the meaning of article 12 and therefore is comprised within the definition of the word "State" and the order passed under article 359 is a law within the meaning of article 13(2) of the Constitution. Consequently an order passed by the President under article 359 is liable to be tested on the anvil of the fundamental rights enshrined in Part Ill of the Constitution: Secondly, it is urged that an order passed under article 359 is made in the context of the Emergency and therefore enforcement of only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency. In consequence, the President can only suspend the enforcement of fundamental rights under article 22 and article 31 (2) under an order passed under article 359 and no others. Thirdly, it is urged that even if the President can suspend the enforcement of any fundamental right, the order passed can still be tested under the very fundamental right enforcement of which has been suspended. Fourthly, it is urged that an order passed under article 359 can in any case be challenged under article 14, and if so the order passed in the present case is violative of article 14 because some persons can be detained under the Defence of India Act, 51 of 1962 (hereinafter referred to as the Act) and the Rules while others can be detained under the Preventive Detention Act. As the Act and the Rules give more drastic powers for detention as compared to the powers conferred by the Preventive Detention Act, there is discrimination, for there is no indication as to when detention should be made under the Act and the Rules and when under the prevention law, and the matter is left to the arbitrary discretion of the executive. Fifthly, it is urged that in view of the language of the order under article 359, there should have been an ; 231 express provision in the Act and the Rules to the effect that enforcement of fundamental rights under articles 14, 21 and 22 was suspended and in the absence of such an express provision, the Presidential order under article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution. Sixthly, it is urged that article 22 (5 ) provides that grounds of detention should be furnished to a detenu and the order of the President did not do away with the necessity of furnishing the grounds. Besides these main contentions, three subsidiary contentions have also been raised in one petition or another and they are (1) that the fresh order had not been communicated to the detenues and was therefore of no avail; (ii) that the order was not in the form as required by article 166 of the Constitution and it is therefore for the State Government to prove that it was passed by the authority which had the power to do so; and (iii) that the fresh order was mala fide. The petitions have been opposed on behalf of the State Government. It is unnecessary to set out in detail the contentions in reply to the main points raised on behalf of the petitioners. It is enough to say that the contention on behalf of the State is that once the President has passed an order under article 359 suspending the enforcement of any fundamental right, it is not open to rely on that fundamental right for any purpose, so long as the order under article 359 stands and such an order cannot be tested in any manner by the very fundamental right the enforcement of which it has suspended. Further as to the subsidiary points, the State contends that the fresh order of detention was communicated to each detenu and that the order was in the form required by the Constitution of Jammu and Kashmir and that article 166 has no application to the State of Jammu and Kashmir. It was finally denied that the order was mala fide in any of the cases. Part XVIII deals with Emergency Provisions and begins with article 352 which provides for making a declaration that "a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance", if the President is so satisfied. articles 353 and 354 provide for the effect of the Proclamation of Emergency; but it is unnecessary to refer to them for present purposes. Article 358 lays down that during the period that a Proclamation of Emergency is in operation, Article 19 shall remain suspended, Article 359 with which we are particularly concerned lays down that where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain L10Sup. C1/67 18 232 suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. " The order made under article 359 may extend to whole or any part of the territory of India and has to be laid, as soon as may be after it is made, before each House of Parliament. It will be seen from the terms or article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III. It is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency. There is nothing in article 359 which in any way limits the power of the President to suspend. the enforcement of any of the fundamental rights conferred by Part III.It is to our mind quite clear that the President has the power to suspend the enforcement of. any of the fundamental rights conferred by Part III and there is nothing thereunder which makes any distinction between one fundamental right or another. As article 359 stands, it seems to us, it clearly envisages that once a Proclamation of Emergency has been issued, the security of India or any part of the territory thereof may require that the President should suspend the enforcement of any of the fundamental rights conferred by Part III. There is in our opinion no scope for inquiry into the question whether the fundamental right the enforcement of which the President has suspended under article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance, for article 359 posits that it may be necessary for the President to suspend any of the fundamental rights in Part HI for the sake of the security of India. There is thus a basic assumption in article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights conferred by Part III in the interest of the security of India. If he considers that necessary, it is unnecessary in the face of that basic assumption to inquire whether enforcement of a particular fundamental right suspended by the President has anything to do with the security of India, for that is implicit in article 359. It follows therefore that it is open to the President to suspend the enforcement of any of the fundamental rights conferred by Part III by an order under article 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it is necessary. This brings us to the main ground ' raised on behalf of the petitioner that an order under article 359 is a law made by the State within the meaning of article 13(2) and has therefore to be 233 tested under Part III of the Constitution. We may assume for present purposes that the President is comprised within the word "State" in article 12. We may also assume that the order made by the President under article 359 is a law in its widest sense. The question however is whether such an order can be considered to be a law for the purpose of article 13(2) and tested thereunder. Article 13(2) and article 359 being parts of the same Constitution stand on an equal footing and the two provisions have to be read harmoniously in order that the intention behind article 359 is carried out and it is not destroyed altogether by article 13(2). It follows that though an order under article 359 may be assumed to be law in its widest sense, it cannot be law within the meaning of article 13(2), for if that were so, article 359 would be made nugatory. The Constitution through article 359 says that the President may suspend the enforcement of any of the fundamental rights in Part III where a Proclamation of Emergency is in force and that means that during the period of Emergency the fundamental rights, enforcement of which is suspended, cannot be enforced. If the order is a law within the meaning of article 13(2), the result would be that though the order says that the enforcement of a particular fundamental right is suspended during the period of Emergency the order can still be tested with the aid of article 13(2) on the anvil of the same fundamental right, the enforcement of which it suspends. That would in our opinion result in making article '359 completely nugatory, for then a declaration made there under that the enforcement of certain fundamental rights is suspended during the period of Emergency would have no meaning whatsoever. ' Therefore, applying the principle of harmonious construction we are of opinion that an order passed under article 359. cannot be law for the purpose of article 13(2), assuming it to be law in its widest sense. It follows therefore that an order under article 359 derives its force from article 359 itself and takes effect in accordance with its tenor and cannot be affected by article 13 (2), and cannot be tested under any of the provisions of Part III of the Constitution which it suspends. Reliance in this connection is placed on the judgment of this Court in Ghulam Sarwar vs Union of India(1), where the majority made a distinction between the President 's order itself under article 359 and the effect of that order. In that case it was observed that "there is a clear distinction between deprivation of fundamental rights by force of a constitutional provision itself and such deprivation by an order made by the President in exercise of a power conferred on him under a constitutional provision. " It was further observed. that "Article 359(1) does not operate by its own force. The President has to make an order declaring that the right to move a court in respect of a fundamental right (1) ; 234 or rights in Part III is suspended. He can only make an order which is a valid one. " It was further observed that an order making an unjustified discrimination in suspending the right to move a court under article 14, would be void at its inception and would be a still born order. We must say with greatest respect that it is rather difficult to understand how an order under article 359 which suspends the enforcement of a fundamental right can be tested under that very fundamental right. It is true that there is a distinction between article 358 and Art 359(1). Article 358 by its own force suspends the fundamental rights guaranteed by article 19; article 359(1) on the other hand does not suspend any fundamental right of its own force but it gives power to the President to suspend the enforcement of any fundamental right during the period of Emergency. But that cannot mean that an order passed under article 359(1 ) suspending the enforcement of a particular fundamental right has still to be tested under the very fundamental right which it suspends. That would in our opinion be arguing in a circle and make Art 359 completely nugatory. It seems that the majority in Ghulam Sarwar 's(1) case was also conscious of the fact that the reasoning on which it came to the conclusion that an order made under article 359 could be tested under article 14. though it suspended that Article, was open to the criticism that it was an argument in a circle. The argument was however met by making a distinction between the order and the effect of that order and it was observed that if the order did not violate article 14 it could validly 'take away ,the right to enforce the fundamental right under article 14. With greatest respect it is difficult to appreciate this reasoning and the distinction on which it is based. It seems to us that if article 359 is to have any meaning at all and is not to be wiped out from the Constitution an order passed thereunder suspending a fundamental right cannot possibly be tested under ' that very fundamental right which it suspends. If that were permissible no order under article 359 could really be passed. If article 359 is not to be rendered nugatory, it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends. We must therefore respectfully differ from the view taken in Ghulam Sarwar 's case(1) and hold that an order passed under article 359(1) cannot be tested with the aid of article 13(2) under that very fundamental right the enforcement of which it suspends. There is therefore no force in the first point raised on behalf of the petitioners. We ,also see no force in the second point raised by the petitioners. As we have already indicated article 359 envisages that an (1) ; 235 order passed thereunder for suspension of the enforcement of particular fundamental right is for the sake of security of India It is therefore not necessary to enquire whether there is any nexus between a particular fundamental right suspended and the security of India. Article 359 itself posits that it may be necessary in the interest of the security of India to pass an order suspending the enforcement of any fundamental right thereunder. This is clear from the fact that article 359(1), provides for the suspension of the enforcement of the fundamental rights in Part III of the Constitution only during the period of Emergency meaning thereby that suspension of the enforcement of any of the fundamental rights which the President considers necessary is for the security of India. We fail to see why only fundamental rights under article 22 or under article 31(2) can be suspended under article 359; Article 359 clearly shows that any fundamental right in Part Ill can be suspended during an Emergency and we cannot limit Article 359 in the face of the unambiguous and express words thereof and say that only the enforcement of fundamental right under Articles 22 and 31(2) can be suspended. It may be that prima facie these two fundamental rights appear to have a clearer nexus with security of India; but it does not follow that other fundamental fights may not in an Emergency have such a nexus. In any case article 359 itself proceeds on the basis that the suspension of the enforcement of all or any of the fundamental rights is for the sake of security of India and so gives the power to the President to suspend such enforcement if he considers it necessary for that purpose. The second contention raised on behalf of the petitioners must also be rejected. As to the third contention, we have already indicated that an order passed under article 359(1) suspending the enforcement of a particular fundamental right cannot be tested under that very fundamental right. We cannot see how if the order under Art 359 suspends article 14 its validity can still be tested under that very Article. We have already expressed our respectful dissent from the view taken in Ghulam Sarwar 's case(1) and must reject this contention. As the enforcement of the fundamental right under article 14 was suspended by the President 's order under article 359, no question of that order being bad under that Article can arise even if we assume that the provisions for detention under the Act and the Rules are more stringent than the provisions for detention under the Preventive Detention Act. The fourth contention also fails. As to the fifth contention it is urged that on. the words of the order passed by the President suspending the enforcement of fundamental rights under articles 14, 21 and 22, there had to be a 236 provision in the Act and the Rules expressly to the effect that these fundamental rights would not be enforceable. We cannot understand how any provision could have been made in the Act and Rules to this effect. Such a provision in the Act 43r the Rules would be clearly unconstitutional. It is only because article 359(1)provides that the President may suspend the enforcement of a particular fundamental right that it is possible for the enforcement of any fundamental right to be suspended during the Emergency. What the President has provided in the present case is that the enforcement of fundamental rights under articles 14, 21 and 22 would be suspended if any person has been deprived of such right under the Defence ' of India Ordinance (later replaced by the Act) or the Rules or orders made thereunder. It is necessary to emphasis that the President 's order speaks of suspension under the Ordinance (later replaced by the Act) or the Rules or orders made thereunder. It does not say that the enforcement of such right is suspended if any person is deprived of it by the Ordinance the Rules or orders made thereunder. Therefore it was not necessary that there should be any express provision in the Act or the Rules suspending the enforcement of fundamental rights under articles 14,21 and 22. The clear intendment of the President 's order is that if any fundamental right of any person under articles 14, 21 and 22 was invaded by any action taken under the Ordinance (later replaced by the Act), or any rule or order thereunder, that action could not be tested on the anvil of those fundamental rights. It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under articles 14, 21 and 22. The fifth contention must also fail. The sixth contention is that article 22(5) which lays down that grounds of detention must be communicated to the person detained must still be applicable. We have not been able to understand this argument at all. If the President 's order is validly made as we hold it to be and if it suspends article 22 as it does we fail to see how clause (5 ) continues, for it is only a part of article 22 which has been suspended. There is no question therefore of furnishing any ground under article 22(5) to the detenu if the detention is under the Act on the Rules, for the entire article 22 has been suspended. The argument under this head is also rejected. This brings us to the subsidiary points raised on behalf of the petitioners. It is first said that the fresh order was not communicated to the detenues. This has been denied on behalf of the State. We see no reason why the fresh order which was passed on the same day on which the earlier order was cancelled would not have been communicated. Nothing has been shown to us to disbelieve the statement on behalf of the State that the fresh order was 237 communicated in each case and. therefore any argument based on its not being communicated must fail. Then it is argued that the order is not in the form as required by article 166. It is enough to say that article 166 does not apply to the State of Jammu and Kashmir. We have to look to the Constitution of Jammu and Kashmir to see whether the form of the order is in accordance therewith. It is clear that the order is in the form required by section 45 of the Constitution of Jammu and Kashmir. The presumption must therefore be made that it was passed validly unless the petitioners can show that it was not passed as required by law. No attempt has been made on behalf of the petitioners to show that. The contention on this head must therefore also be rejected. Lastly, it is urged that the orders in these cases were mala fide. This has been denied on behalf of the State. No grounds have been shown which may lead us to the conclusion that the fresh orders which were passed were mala fide. The necessity for fresh orders arose because the review was not made in accordance with the manner indicated by this Court in Lakhanpal 's case(1). The fresh order that was made was on the same facts and must in the circumstances be held to be valid in view of the judgment of this Court in Jagdev Singh 's case(2). The petitions therefore fail and are hereby dismissed. Hidayatullah, J. I agree that the petitions be dismissed. As I was a member of the Constitution Bench which decided Ghulam Sarwar 's(2) case I wish to say a few words in explanation. The judgment of Subba Rao, C.J. to which I was a party has expressed itself somewhat unhappily on ,the point on which it has been overruled in the judgment just delivered. The former Chief Justice upheld the extension of G.S.R. 1418/30 10 62 (which suspended the benefits of articles 21 and 22 to a foreigner) by G.S.R. 1275/27 8 3965. The latter order suspended article 14 in addition to the two articles already suspended. This 'suspension was upheld on the ground that there was a clear classification between citizens and foreigners and in a state of war and emergency foreigners could be treated as a class. In other words, the order was tested on the ground of article 14 itself which the order of the President sought to suspend. In the judgment just delivered it has been said that the reasoning in Ghulam Sarwar 's(3) case is difficult to understand and that the suspension of article 14 precludes examination of the order under that article. I should have thought that I had sufficiently explained my position during the discussion of the draft judgment (1) ; (2) ; (3) ; 238 in Ghulam Sarwar 's(1) case but it appears that in spite of my doubts about the width of language in that judgment, the decision to which I became a party continued to bear the meaning now attributed to it. If I may say with, great respect, the judgment just delivered also suffers from a width of language in the other direction. The truth lies midway. Although a suspension of a fundamental right under article 359(1) may be made either for the whole of India or any part of the territory of India, Ghulam Sarwar 's(1) case points out that there is nothing to prevent the President from restricting the scope of the order to a class of persons provided the operation of the order is confined to an area and to a period. As the order was applicable to the whole of India and for the duration of the emergency although it affected a class, namely, foreigners, it was upheld. This was not the application of article 14. This was said because the argument was that the order could only be with reference to the whole or a part of the territory of India and not with respect to a class such as foreigners. That meant that the Order was considered in relation to the words of article 359(1). Room was, however, to be left for the play of article 14 for those theoretically possible (and fortunately 'only theoretically possible) cases in which the exercise of the power itself may be a cloak for discrimination, in other words, cases of mala fide action and clear abuse of the power for some collateral purpose. This strict reservation only was intended to go into the judgment in Ghulam Sarwar 's(1) case but if a wider meaning can be spelled out from that judgment I dissent from it and say that I never intended to 'be a party to such a wide statement. The examination under article 14 of the suspension of the article itself, as expressed in the judgment of Subba Rao C.J. gives a very different impression. For the same reason I cannot subscribe to the width of language in the judgment just delivered which apparently 'does not make any reservation at all. Therefore I agree to the order proposed but reserve my reasons. R.K.P.S. Petitions dismissed.

By a petition under Art.32 of the Constitution,the petitioner challenged an order of detention passed against him under r. 30(1)(b) of the Defence of India Rules, 1962. It was contended on his behalf, inter alia, (i) that the order of the President passed on November 3. 1962 as amended on November 11, 1962 under article 359(1) of the Constitution, suspending the right to move any court for the enforcement of the fundamental rights conferred by articles 14, 21 and 22 if any person was deprived of such right during the period of the Emergency under the Defence of India Ordinance No. 4 of 1962 or any rule or order made thereunder, was a law within the meaning of article 13(2) of the Constitution and could therefore be tested against the fundamental rights in Part III of the Constitution including the very fundamental right the enforcement of which is suspended; that only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency, i.e., the President can only suspend enforcement of fundamental rights under articles 22 and 31(2) by an order under article 359; that the order under article 359 in the present case was violative of article 14 as it enabled the executive to decide. in exercise of an arbitrary discretion, whether to detain a person under the more drastic provisions of the Defence of India Act 51 of 1962 or the Preventive Detention Act; (ii) that in view of the language of article 359 there should have been an express provision in the Defence of India Act and the Rules that the enforcement of fundamental rights under articles 14, 21 and 22 was suspended and in the absence of such a provision the order passed under article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution; (iii) that article 22(5) requires that grounds of detention should be furnished to the detenu and the President 's order of November 1962 does not do away with this requirement which was not satisfied in the present case; and (iv) that the order of detention was not in the form required by article 166 of the Constitution and the State Government therefore had to prove that it was passed by the authority empowered to do so. Held: (by the Court) :The petitions must be dismissed. Per majority: (i) An order passed under article 359(1) cannot be tested with the aid of article 13(2) under that very fundamental right the enforcement of which it suspends. Even if an order under article 359 is assumed to be law in its widest sense, it cannot be a law within the mean 228 ing of article 13(2), for if that were so, the Article would be made nugatory. article 359 gives categorical powers to. the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III. There is nothing in it which in any way limits the power of the President and it is for him to decide the enforcement of which of the fundamental rights should be suspended during the Emergency. [234D G; 232B D] There is a basic assumption in article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights in the interest of the security of India and in the face of that basic assumption, there is no scope for enquiry into the question whether the fundamental right the enforcement of which the President has suspended under article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance. It cannot be said that only fundamental rights under article 22 or article 31 (2) can be suspended under article 359. [232 F, G; 235C D] Even if the provisions for detention under the Defence of India Act and the Rules are more stringent, after the suspension of article 14 under article 359, no question of the order under article 359 being bad under article 14 can arise. [235H] Ghulam Sarwar vs Union of India ; ; dissented from. (ii) The clear intendment of the President 's order is that if any fundamental right of any person under articles 14, 21 and 22 was invaded by any action taken under the Ordinance (later replaced by the Act), or any rule or order thereunder, that action could not be tested on the anvil of those fundamental rights. It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under articles 14, 21 and 22. [236E] (iii) As the President 's order suspending article 22 was validly made, there was no question of furnishing any ground under article 22(5) to the detenu if the detention was under the Defence of India Act or the Rules, for the entire article 22 was suspended. [236G] (iv) Article 166 has no application to the State of Jammu & Kashmir and as the detention order was made in the form required by section 45 of the Constitution of Jammu & Kashmir, it must be presumed to have been validly made. [237B] Per Hidayatullah, J. Although a suspension of a fundamental right under article 359(1) may be made either for the whole of India or any part of the territory of India, Ghulam Sarwar 's case points out that there is nothing to prevent the President from restricting the scope of the order to a class of persons provided the operation of the order is confined to an area and to a period. As the order was applicable to the whole of India and for the duration of the emergency although it affected a class, namely, foreigners, it was upheld. This was not the application of article 14. This was said because the argument was that the order could only be with reference to the whole or a part of the territory of India and not with respect to a class such as foreigners. That meant that the order was considered in relation to the words of article 359(1). The meaning now attributed to the decision in Ghulam Sarwar 's case is in view of the width of language used in that case and the decision of the majority in the present also suffers from a width of language in the other direction whereas the truth ties midway. [238A F] 229

Civil Appeals Nos. 1782 and 1783 of 1966. Appeals from the judgment and decree dated October 6, 1964, of the Kerala High Court in Appeal Suit No. 569 of 1963. O.P. Malhotra and J.B. Dadachanji, for the appellant (in C.A. No. 1782 of 1966) and the respondents (in C.A. No. 1783 of 1966). M.C. Chagla and A.G. Pudissery,. for the respondents (in C.A. No. 1782 of 1966) and the appellants (in C.A. No. 1783 of 1966). The Judgment of the Court was delivered by Hegde, J. These connected appeals by certificate arise from the decision of the. High Court of Kerala in Appeal Suit No. 569 of 1963 on its file. Civil Appeal No. 1782 of 1966 is filed by the plaintiff in the suit and Civil Appeal No. 1783 of 1966 is filed by the second defendant (who shall hereinafter be referred to as the defendant), who is contesting this appeal. The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 9.9.1121 (Malayalain Era.) between the plaintiff and the 1st defendant who died very soon after the filing of the suit. The suit was contested by the second defendant, his widow. The trial court decreed the suit as prayed for but in appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sate deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field at its east for a sum of Rs. 11500/ . 923 Originally the plaintiff was the owner of the suit properties. He sold the same to the 1st defendant on 9.9.1121 (Malayalam Era) under Exh. According to the plaintiff at the time of the execution of P 1, there was an oral agreement between him and the 1st defendant whereunder the 1st defendant agreed to reconvey the properties sold for the very price it was sold whenever the plaintiff calls up.on him to reconvey them. The suit from which these appeals arise has been rounded on the basis of the said agreement. The 1st defendant died even before he could file his written statement in the case. Before his death he had gifted the suit properties by means of a registered deed in favour of the defendant. She denied the agreement pleaded in the plaint but on the other hand she stated that just before his death her husband had agreed to sell to plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11500 but due to the illness of her husband the sale in question could not be effected. She proceeded further and averred as follows in paragraph 10 of her written statement. "This defendant has been asked by the 1 st defendant before his death that even after his death the properties in item No. 1 (in the plaint schedule which are the subject matter of the contract) as mentioned in paragraph 7, except the nilam on the eastern part thereof, should be assigned to the plaintiff for a consideration of Rs. 11500 and accordingly this defendant is willing to give such property as mentioned above to the plaintiff." After the defendant filed her written statement, the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant nor did he inform the court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of that agreement. The suit proceeded on the basis of the agreement pleaded in the plaint. The 1st question that arises for decision is whether the agreement pleaded in the plaint is true. The burden of proving that agreement is naturally on the plaintiff. The agreement in question as mentioned earlier is said to be an oral agreement. Therefore the plaintiff 's task is all the more difficult. The sale deed Exh. P. 1 proceeds on the basis that it evidences an outright sale. It does not either specifically or by implication lend support to the case put forward by the plaintiff. On the other hand it records the following condition stipulated by the vendor: "Subject to the stipulation that during my life time the schedule properties shall not be mortgaged or assigned to anyone else without my knowledge and consent, I completely convey 'and surrender to you all my 924 remaining rights and possession, and the properties are given to your possession on receipt of the sale consideration of Rs. 24,500. " From this clause it is clear that the plaintiff conveyed all his rights, title and interest in the suit properties to the vendee subject to the aforementioned stipulation. It is not necessary to consider whether the restriction in question is a valid one. Even if we assume that the same is valid, it does not support the plaintiff 's case. On the other hand, by implication it negatives his case. At best the clause referred to above merely confers on the vendor a right to preempt. Hence by implication it negatives the plaintiff 's case that there was an agreement to reconvey the suit properties. The plaintiff has not given any satisfactory explanation why the contract relating to reconveyance was not incorporated in the sale deed. To explain this important omission he has examined P.W.2, who. claims to be a document writer of considerable experience. He claims that the document in question was written by one of his assistants. His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re conveyance in Exh. P.1 itself but he advised them that it could not be done. This is a strange legal advice. This evidence is on the. face of it unbelievable. There is also no satisfactory explanation why the alleged agreement was not reduced into. writing. In support of the alleged agreement reliance was tried to be placed on Exh. P 2, which is said to be a document signed by the first defendant after the present suit was filed and before his death. The High Court was unable to accept the genuineness of this document. It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother. From the High Court 's judgment we find that though the document contains hardly few lines, for completing the same as many as three different types o.f ink had been used. The original document has not been called for and therefore we have to proceed on the basis that the. observations made by the High Court are correct. The very recitals in the document show that it is a suspicious document. For all these reasons we are unable. to place any reliance on this document. It may be again emphasized at this stage that this document has come into existence after the institution of the present suit. The principal witnesses who are examined in support of the oral agreement pleaded in the case are P.Ws.1, 2 and 7. We have already referred to the evidence of P.W. 2. He does not appear to us to be a reliable witness. P.W. 1 is no other than the plaintiff himself. P.W. 7 is his brother. P.W. 1 has no children and P.W. 7 is his nearest heir. Therefore it is quite 925 clear that both P.Ws. 1 and 7 are interested witnesses. Their evidence cannot carry much weight. The story put forward by the plaintiff in the plaint is an im probable one. ItI is true that the plaintiff and the 1st defendant are first cousins. It is also true that their relationship was very cordial. But if the 1st defendant could not trust the plaintiff to advance a sum of Rs. 24,000 without security as could be gathered from the plaintiff 's evidence, we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property. From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer, there was some talk about reconveying a portion of the suit properties to the plaintiff. It may also be as held by the trial court that the suit property was worth more than Rs. 24,000 at the time of its sale. It appears likely that neither side has come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one. We do not think that the trial court was justified in relying on that testimony for granting the decree prayed for. The trial court itself observed in the course of its judgment (para 12) that "there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant". This finding alone should have been sufficient to non suit the plaintiff. Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint. This takes us to the decree passed by the High Court in respect of plaint item No. 1. This decree is purported to have been passed on the basis of the admission made by the defendant. It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. plaintiff did not at any stage accept the agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh. P 1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant. A 926 suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his. part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thos pleas. As observed by this Court in Pt. Prem Raj vs The D.L.F. Housing and Construction (Private) Ltd. and anr.(1) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable. The High Court purported to rely on the decision of this Court in Srinivas Ram Kumar vs Mahabir Prasad and ors. (2) in support of the decree passed by it. We do not think that the ratio of that decision is applicable to the facts of this case. Therein the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30,000 towards the price and had been put into possession in part performance of the contract but the defendant pleaded that the amount of Rs. 30,000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest. This Court accepted the plea of the defendant and negatived the claim of the plaintiff and refused to decree the specific performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that case, it was appropriate to grant a decree in favour of the plaintiff for Rs. 30,000 which admittedly remained unpaid. As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract. Hence in our opinion the decision in Srinivas Ram Kumar 's case (2) does not bear on the facts of the present case. For the reasons mentioned above we dismiss Civil Appeal No. 1782 of 1966 and allow Civil Appeal No. 1783 of 1966. In the result the suit from which these appeals arise stands dismissed. Now coming to the question of costs, on the facts and circumstances of this case we think it is appropriate to direct the parties to bear their own costs throughout. Our reasons for doing so are these: It is proved that the suit properties were sold to the 1st defendant at a very low price. There must have been some good (1) ; (2) ; 927 reason for doing so but the parties have not chosen to place the true version before the Court. It is also proved that the 1st defendant before his death was willing to resell a portion of the suit properties. He had directed his wife to resell the major portion of item No. 1 of the plaint schedule to the plaintiff for a consideration of Rs. 11,500 though its price at that time is proved to be much more than Rs. 11,500. As seen earlier, the defendant was willing to sell item No. 1 in the plaint schedule to the plaintiff for Rs. 11,500. She expressed her readiness to do so in her written statement. She is evidently not willing to stand by that offer now because of the enormous rise of price of properties in recent times. Mr. M.C. Chagla, learned Counsel for the defendant told us at the time of the hearing that the property concerned in the defendant 's appeal is now worth over a lac of ' rupees. That appears to be the reason why the defendant is backing out of the offer made by her in her written statement. All that one need say is that all is not well with defendant 's ease either. Civil Appeal 1782/66 dismissed. Civil Appeal 1783/66 allowed.

The plaintiff as original owner of the suit properties sold the same to the 1st defendant who. was husband of the 2nd defendant. According to the plaintiff apart 'from the written sale deed there was an oral agreement between him and the 1st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called upon him to do so. The suit was filed for specific performance of the said oral agreement. The 1st defendant died even before he filed his written statement. Before his death he had gifted the suit properties to his wife, the 2nd defendant. In her 'written statement the 2nd defendant denied the agreement pleaded in the point but stated that just before his death her husband had agreed to sell t6 plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500 but due to his illness the sale could not be effected. She reiterated the said offer in her written statement but the plaintiff did not accept it and the suit proceeded on the basis of the agreement pleaded in the plaint. The trial court decreed the suit as prayed for. In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500. Both the parties appealed to this HELD. : (i) The burden of proving the oral agreement was on the plaintiff. The sale deed on the face of it evidenced an outright sale. The stipulation ha it that the purchaser would not mortgage or assign the properties to anyone else during the vendor 's lifetime went against the plaintiff 's case inasmuch as it only gave the vendor a right to preempt. ] 'here was no satisfactory explanation why such an important thing as the agreement to re convey was made orally and not reduced to writing. [923 G,924B] It appeared likely in the present case that neither side had come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be: established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. [925 D E] On the evidence adduced by him the plaintiff had failed to prove the agreement pleaded in the plaint. [925 F] (ii) The High Court was wrong in passing the decree in respect of plaint item No. 1 on the basis of the admission of the 2nd defendant in her written statement. The plaintiff did not at any stage accept the 922 agreement pleaded by the defendant as true. The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement were two totally different agreements. The plaintiff did not plead at any stage that he was ready and willing to. perform the agreement pleaded in the written statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. Before a decree for specific performance can be given the plaintiff has to. plead and satisfy the court about his willingness to perform his part of the contract. [925 G926 B] Pt. Prem Raj vs The D.L.F. Housing and Construction (P) Ltd. & Anr., ; , applied. Srinivas Ram Kumar vs Mahabir Prasad & Ors., ; , distinguished. (iii) Since the parties had not laid the true version before the court and the defendant had refiled from the offer made by her in her written statement it was a case in which it was appropriate to direct the parties to bear their own costs throughout. [926 H]

iminal Appeal No. 3 of 1962. Appeal by special leave from the judgment and order dated September 20, 1961 of the Patna High Court in Criminal Appeal No. 124 of 1960. D. Goburdhan, for the appellant. S.P. Ferma, for the respondent. July 31, 1963. The judgment of the Court was delivered by AYYANGAR J. This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran. The appellant was charged with an offence under section 304A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved inef 201 fective and it was for this reason that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders. Though some of the facts alleged by the prosecution were disputed by the accused, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed, learned Counsel for the appellant did not attempt to controvert them. The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected, (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under section 304A of the Indian Penal Code which en acts : "304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. " The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two : (1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de tected merely by the place being properly lit. The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a 'rash act ' done in reckless disregard of the serious consequences to people coming in contact with it. It might be mentioned that the accused was also cliar 14 2 section C. India/64 202 ged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge. The principal point of law which appears to have been argued before the learned judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right. The learned judges repelled this defence and in our opinion, quite correctly. The right of private defence of property which is set out in section 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of section 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of section 99, nor of course of section 103 of the Code. As this defence was not pressed before us with any seriousness it is not necessary to deal with this at more length. Learned Counsel, however, tried to adopt a different approach. The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in jury by direct violence and the same principle would 203 govern the infliction of injury by indirectly doing some thing on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth "an arrangement to shoot a man without personally firing a shot". It is, no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: "The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must not set man traps or spring guns. This is no more than ordinary civilised behaviour." judged in the light of these tests, it is clear that the point urged is wholly without merit. The appeal fails and is dismissed. Appeal dismissed.

The appellant was charged under section 304 A of Indian Penal Code for causing the death of a woman. The deceased was residing near the house of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of occurrence and so the deceased along with others started using the latrine of the accused. The accused protested against their coming there. The oral warnings however, proved ineffective and so he fixed up a naked copper wire across the passage leading upto his latrine and that wire carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence, the deceased went to the latrine of the appellant and there she touched the aforesaid fixed wire as a result of which she died soon after. The trial and the appellate court convicted and sentenced the appellant under section 304A of the Indian Penal Code. Hence this appeal. 200 Held : (1) The plea of the right of private defence of property was not sustainable for the reason that the type of injury caused by the trap laid by the accused could not be brought within the purview of section 99 or 103 of the Indian Penal Code. (2) A trespasser was not an outlaw, a caput lupinem. The mere fact that the person entering a land was a trespasser did not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.

Appeals Nos. 600 and 679 of 1964. Appeals from the judgment and decree dated February 20, 1962 of the Bombay High Court (Nagpur Bench) at Nagpur in Appeals Nos. 196 and 195 of 1956 from original decree. S.G. Patwardhan, section Murthy and B. P. Maheshwari, for the appellant (in C.A. No. 600/64). S.N. Kherdekar and A. G. Ratnaparkhi, for the appellant (in, C.A. No. 679/64). A.V. Viswanatha Sastri and M. section Gupta, for the respondent (in C.A. No. 600/64). A.V. Viswanatha Sastri and M. section Gupta for U. P. Singh, for the respondent (in C.A. No. 679/64). 502 The Judgment of Subba Rao, Mudholkar and Ramaswami, JJ. was delivered by Mudholkar J. The dissenting Opinion of Raghubar Dayal and Bachawat, JJ. was delivered by Dayal, J. Mudholkar, J. This judgment will also govern Civil Appeal No. 679 of 1964 since common questions of law arise in both the 'appeals. For illustrating the points which arise for consideration in ,these appeals we will set out briefly the facts pertaining to C.A. 600 of 1964. The appellant (hereinafter referred to as the Company) is a private limited company having its registered office at Calcutta and a branch office at Dhamangaon which was formerly in the Province ,of Central Provinces & Berar but is now in the State of Maharashtra. The company owns a ginning factory at Dhamangaon. The Notified Area Committee of that place imposed, under section 66(1)(b) of the Central Provinces Municipalities Act, 1922 (hereinafter referred to as the Act) as applied to Berar, a tax at the rate of one anna per bojha of ginned cotton and one anna per bale of pressed cotton as from Dec. 22, 1936 on which date a notification sanctioning the imposition under section 241(1) of the Act was published in the official Gazette by order of the Government of the Province. The Notification in question runs as follows: "No. 7911 3242 M VII: In exercise of the powers conferred by clause (a) of sub sec. (1) of sec. 241 of the Central Provinces Municipalities Act, 1922 (C.P. Act 11 of 1922) as applied to Berar, the Local Government is pleased to confirm the following rule made by the Notified Area Committee, Dhamangaon, in the Amravati district, under clause (b) of sub section (1) of sec. 6(1) of the said Act, for imposing a tax on persons carrying on the trade of ginning and pressing cotton by means of steam or mechanical process within its limits: Rule The committee shall levy from all persons carrying on within its limits the trade of ginning or pressing cotton into bales by means of steam or mechanical process a tax at the following rates from the date of the publication of this notifiCation in the Central Provinces Gazette: (a) For each bojha of 392 lbs. ginned 1 anna. (b) For each bale of 392 lbs. pressed 1 anna. By order of the Government, (Ministry of Local Self Government), Sd/ R. N. Bannerjee, Secretary to Government, Central Provinces. 503 The Notified Area Committee of Dhamangaon decided to raise the rate from 1 anna per bojha and 1 anna per bale to four annas per bojha and four annas per bale. Soon after this decision it caused the following notification to be published in the official Gazette on April 10, 1941. The Notification runs thus: "The following amendment to the rule for imposition of the tax ' by the o Municipal Committee, Dhamangaon, in the Amraoti district, under cl. (b) of sub sec. (1) of sec. 66 of the Central Provinces Municipalities Act, 1922 (11 of 1922) as ap plied to Berar, on persons carrying on the trade of ginning and pressing cotton by means of steam or mechanical process within its limits, published in the Central Provinces and Berar Gazette Notification No. 7911 3242 M/Vlll, dated the 22nd Dec. 1936, is published for the information of the public, the same having been previously published as required by subsection (3) of sec. 68 of that Act, and in exercise of the powers conferred by sub sec. (7) of sec. 68 of that Act, the municipal committee directs that the said amendments shall come into operation on the 1st August, 1941: Amendment For the figure and the word 'anna ' occurring in clauses (a) and (b) of the rule, the figure and word '4 annas ' shall be substituted. Sd/ B. section Mundhada, President, Municipal Committee No. 2418 M XIII" Certain rules were framed by the Government for the assess ment and collection of tax which were also published on Dec. 22, 1936. These rules were, however, amended by the Local Government and the amended rules were published in the Gazette on July 30, 1941. It is these latter rules which are now in force. Consequent upon the amendment of the rules the appellants in the two appeals and the proprietors of the ginning factory in Dhamangaon have been paying these taxes at the new rate of 4 annas per bojha and 4 annas per bale. It may be mentioned that in Dec. 1951 the Municipal Com mittee. Dhamangaon, which by then had replaced the Notified Area Committee proposed to raise the tax from four annas to one rupee per bojha and per bale but eventually dropped the proposal. Apparently being alarmed at the abortive attempt of the Municipal committee to raise the tax further, the appellant and other factory owners in Dhamangaon instituted suits for recovery from the Municipal Committee of excess tax paid by them within 3 years of the dates of the respective suits. The Company claimed refund of Rs. 12,511 6 6 on the ground that it was recovered from it illegally 504 by the Municipal Committee and paid by it under a mistake. The amount has been computed by them thus: Rs. 6,905 14 6 recovered from them in respect of ginned cotton between 29 3 49 and some date in the year 1952 plus Rs. 8,048 8 0 in respect of pressed cotton recovered from them during the same period less Rs. 3,738 9 6 which was legally due from them thus totaling to Rs. 11,215 13 0. To this they added Rs. 1,295 9 6 as interest by way of damages on the aforesaid said amount at the rate of 9 per cent. In the plaint it was contended by the Company that after the coming into force of section 142A of the Government of India Act, 1935 (which came into effect from 1 4 1939) till January 25, 1950 a tax on trade, profession or calling in excess of Rs. 501 per annum could not be imposed either by a Provincial Government or by a Local Body. Nor again, could an existing tax on trade, profession or calling be raised further so as to exceed Rs. 501 per annum. The Company further pointed out that after the coming into force of the Constitution the upper limit of the tax was raised to Rs. 250/per annum and that as the Company was already paying more than this amount per year even at the rate of one anna per bojha and one anna per bale recovery from them at the enhanced rate of 4 annas was illegal with effect from April 1, 1939. The Municipal Committee contended in its written statement that the provi sion of section 142A of the Government of India Act and article 276 of the Constitution which limit the tax on professions, trades or callings or employments to Rs. 50 and Rs. 250 per annum respectively do not apply to a case such as the present where there is no imposition of a new tax but only an enhancement of the rate of an existing tax. It further contended that the tax in question at the rate of 4 annas per bojha and 4 annas per bale was in existence when article 276 came into force and is saved by that Article. According to the Committee, the Company is not entitled to claim back the amount paid by it under section 72 of the Indian Contract Act or the general law. This contention, however, was negatived by the trial court and does not appear to have been reiterated before the High Court. Nor again was it pressed before us by Mr. Viswanatha Sastri who appears for the Municipal Committee. The principal contention which was pressed before the trial court and raised before the High Court was that the Company 's suit was bad for non compliance with the requirements of section 48 of the Act and that is the point which we have to consider in this appeal. 48 of the Act reads thus: "(1) No suit shall be instituted against any Committee or any member, officer or servant thereof or any person acting under the direction of any such committee, member, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, 505 has been, in the case of a committee, delivered or left at its office, and, in the case of any such member, officer or servant or person as aforesaid, delivered to him or left at his office or usual place of abode, and the plaint shall contain a statement that such notice has been so delivered or left. (2)Every such suit shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action." Mr. Patwardhan for the appellant contends that this was a case of recovery of an Illegal tax and, therefore a claim for its refund fell outside the provisions of section 48 of the Act. In support of his contention he relied upon a number of decisions and we will proceed to examine them. The first of these cases is Municipal Committee, Karania vs New, East India Press Co. Ltd., Bombay(1). That was also a case where enhancement of a tax was made by the Municipal Committee of Karanja after March 31, 1939 in excess of Rs. 50 per year payable by one person. There, a Division Bench of the High Court held, that the enhancement was in contravention of section 142A of the Government of India Act, 1935 and was illegal, that a ' suit for refund of the tax is maintainable by the person who has paid the tax and that such a suit is not barred by the provisions of sections 48, 83 or 84 of the Act. The relevant 'observations of Bose A.C.J. (as he then was) who delivered the judgment are as follows: "It was then argued that the Civil Courts have no jurisdiction because of sections 83 and 84 of the Central Provinces Municipalities Act as applied to Berar. It was said that Act provides for remedies in cases of wrongful recovery of taxes. Therefore, the jurisdiction of the civil courts is barred. A large number of cases have dealt with this question but we need consider only two of the latest decisions. In District Council, Bhandara vs Kishorilal (Civil Revision No. 220 of 1946 decided on the 25th June, 1948) one of us (Bose, J.) held that provisions corresponding to sections 83 and 84 come into play only when the Municipal Committee acts within the scope of its authority, that is to say, when it is acting or purporting to act under the Municipalities Act. It is pointed out there in respect of this very section of the Government of India Act, sec. 142 A, that when a Municipality is prohibited by law from imposing a tax in excess of a certain amount then it cannot be said to be acting either under the Act or purporting to act under the Act if it exceeds that amount, and in such a case the jurisdiction of the Civil Courts is not barred. Here again we may refer to the fact that in the Privy Council case Radha Kishan Jaikishan (Firm) vs Municipal Committee, Khandwa(2), this objection does not appear to have (1) I.L.R. (2) [1939] 30 Nag. T.R. 121 (P.C.) 506 been taken. It is hardly likely that it would have been omitted had there been any force in the contention. In the present case, as in District Council, Bhandara vs Kishorilal the Municipality is seeking to recover sums which the: law has prohibited it from taking, in the shape of taxes. Accordingly, as it is acting wholly without jurisdiction, the claims lie and are not barred by reason of sections 83 and 84. Then it was stated that the claims are barred by sec. 48 of the Municipalities Act. There again the same considerations apply. 48 comes into play only when the act is done or is purported to be done under the Municipalities Act. As we have said, that is not the case here because its action is something which is prohibited by law, and so wholly beyond its jurisdiction, and therefore section 48 does not apply. The distinction between a case where section 48 applies and a case where it does not is clearly shown in The Amraoti Town Municipal Committee vs Shaikh Bhikan(1)". Kishorilal 's case to which reference is made in the above quotation is a decision of a Division Bench upon a reference made by Bose J. and which, though rendered earlier, has been reported in I.L R. In that case a tax imposed by the District Council, Bhandara under a similar provision of the Local Self Government Act, 1920 at the rate of three pies per khandi on persons carrying on trade of husking, milling or grinding of grains was raised by it to one anna as from April 1, 1942 with the sanction of the Provincial Government. It was contended on behalf of the respondent that the recovery was illegal. Since the matter involved the interpretation of section 142A of the Government of India Act 1935 Bose J, acting under one of the rules of the High Court referred it to a Division Bench. This is what the Division Bench held: " We are clear that the tax in question is a tax which can be so termed. This was in fact conceded in the Court below and the contention raised before us that the persons who gave grain to Kishorilal for grinding and not he were the traders concerned was plainly devoid of force. He had a mill and with it carried on the trade of milling grain. The tax in question was recovered from him because of this and it was one of the taxes hit by section 142 A of the Government of India Act, 1935, and the Professions Tax Limitation Act, 1941 (XX of 1941). " When the matter went back before Bose J., it was contended on behalf of the District Council that the suit was barred altogether by the provisions of section 71 and that the provisions of section 73 make the issue of a notice by the Distt. Council a precondition for the institution of a suit of the kind before him. Reliance was placed on a (1)I.L.R. , 219, 220. 507 certain rule framed under section 79(1) (xxix) of the Central Provinces local Self Government Act, 1920 After quoting section 71 and the rule relied on the learned Judge observed: "It will be observed that both section 79 and the rule Fire confined to orders and decisions given under the Act. It is impossible to say that an order which contravenes the law or is made in the face of an express statutory prohibition can be said to be under the Act. The words "purporting to be given" or "made under the Act" are not present in this section and so the difficulty which arises regarding the other point is not present here. I hold that the suit is not incompetent on this score." Pointing out that the other question urged before him was more difficult the learned Judge said that his conclusion was that what was done in the case was not "under the Act" and, therefore, what remained for consideration was whether it was "purported to be done" Under the Act. He came to the conclusion that what was done was not "purported to be done under the Act" and expressed himself thus: "Now this expression has recently been interpreted by their Lordships of the Privy Council in H.H.B. Gill vs The King(2) also in Hori Ram Singh vs The Crown(2) of which their Lordships approved. The question is a difficult one and as Varadachariar J. observed in the Federal Court decision at p. 187, it is neither possible nor desirable to lay down any hard and fast rule. The question is substantially one of fact and "must be determined with reference to the act complained of and the attendant circumstances. " I think, however, that the following test which their Lordships of the Privy Council laid down concludes the matter so far as this Act is concerned. Their Lord ships say: "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. " Now I can understand it being said that an act which is within the scope of an official duty cannot be taken out of that category simply because it is carelessly or negligently performed, but I cannot see how an act which is expressly prohibited by law can be said to lie there. If a magistrate directed to supervise a sentence of whipping duly imposed by a competent Court has the wrong man whipped by mistake or imposes more lashes than war ranted, I can understand him being protected. He is there acting within the scope of his duty. But if, instead of having the man whipped. he has him branded with a hot iron he would not, in my opinion, be able to claim the protection. In the same way I cannot see bow a Municipal Committee can (1)A.I.R. (2)[1939] F.C.R. 159. 508 be said to be acting 'under the Act ' when it does that which is expressly prohibited by the Legislature. Say it purported to tax salt. Its action would not be covered by sec. 73 because the Constitution Act makes that an exclusively Central subject. Say also a municipality attempted to tax marriages or births, that would be completely beyond its province and it could not be heard to say that because it has been given certain limited powers of taxation, therefore it 'purports to act ' under the Act whatever the nature of the tax it attempts to impose. In the same way, if the Legislature limits the authority of the Committee to a maximum of Rs. 50 1 do not think it can be said to purport to act within the scope of the Act if it travels beyond its limited provisions." A reference may be made to the decision in The Amraoti Town Municipal Committee vs Shaikh Bhikan(1) which apparently takes a contrary view. There Niyogi J., sitting singly has held that a suit against a municipal committee for the recovery of a tax illegally collected is governed by section 48 of the Central Provinces Municipalities Act, and, is, therefore, barred by limitation if not filed within six months of the. date of the collection of the tax. That case is, however, distinguishable in that there was no prohibition to the levy of the tax and all that had happened was that proper procedure had not been followed in imposing the tax. This was thus a case of something purporting to be done under the Act but not done strictly in accordance with the provisions. That such a case would squarely fall within the ambit of section 48 cannot be questioned. But the point is whether what was done by a local body under the colour of an Act can be regarded as something purported to be done under the Act even though neither the local body nor even the State Legislature has the power to do what was in fact done. The next case referred to was Gajadhar Hiratal vs Municipal Committee, Washim(2). That was also a case in which a tax on bojhas and bales of ginned cotton was raised from Re. 0 2 3 per bale to Re. 0 4 0 per bale and the learned Judges held, following the decision in the New East India Press Co. 's case(1) that the enhancement was ultra vires of article 276 of the Constitution. The other question did not arise for consideration in this case. This decision is, therefore, of little assistance to us, because it is not contended before us that the enhancement of the tax is valid. There is, however, another decision in the same volume at p. 483 (The Municipality of Chopda vs Motilal Manekchand) which is relevant for consideration in this appeal. In that case a Division Bench, while pointing out that the particular tax which was levied by the Municipality was in substance a tax on trade within the meaning of article 276 of the Constitution and being in (1) I.L.R. (3) T.L.R. [1948) 971. (2) I.L.R. 509 excess of Rs. 250 p.a. was beyond the competence of the Municipality, held that a suit for its refund beyond the time prescribed by rules was barred by limitation. According to the learned Judges the levy of the tax though beyond the authority of a Municipality was " an act done in pursuance or execution or intended execution of the Bombay District Municipal Act" and was merely a wrongful act as distinguished from an ultra vires or illegal act. In coming to this conclusion they followed a previous decision of the High Court in Jalgaon Borough Municipality vs The Khandesh Spinning and Weaving Mills Co. Ltd.(1). Incidentally we may mention that an appeal was brought before this Court from that part of the decision in The Municipality of Chonda, East Khandesh vs Motilal Manekchand Press Factory, Chonda(2) which held that the levy was unconstitutional. Ayyangar J. who spoke for the Court has stated towards the end of the Judgment as follows: "In the circumstances the correctness of the decision of the High Court in holding the impugned levy to be a tax on " callings or employments ' and therefore subject to a pecuniary limit of Rs. 250 per year does not really arise for consideration. The respondent , had in their plaint, no doubt, challenged the entirety of the levy and sought relief on that basis, but they had however pleaded in the alternative that the tax might be held to be one on 'a trade etc. ' and therefore within article 276(2) and claimed relief on this footing in the alternative. The learned Civil Judge had accepted this alternative contention and had granted them a decree on that basis and the respondents had not challenged the correctness of that decision by preferring an appeal and the learned Judges of the High Court had accepted this view of the nature of the levy. We however consider it proper to add that there is considerable force in the opinion expressed by the High Court that the tax in question, at the date when the same was challenged, being a levy imposed on persons carrying on the business of pressing cotton, was a tax on 'professions, trades, callings, or employments ' and that the learned Judges of the High Court came to a correct conclusion that the respondents were entitled to the declaration which was granted as regards the maximum amount of the tax that could be levied from the respondents," In Jalgaon Borough Municipality 's case(3) on which the High Court relied in Motilal Manekchand 's case, what had happened was this: The Municipality acting under section 73(iv) of the Bombay Municipal Boroughs Act, 1925 levied octroi duty on fuel oil or furnace oil under certain rules and by laws framed by it with the sanction of the Government which provided for the levy 'of an octroi duty on various articles including 'oils used for machinery '. (1) (2) C.A. No. 168 of 1961 decided on March 11, 1962, (3) 55 Rom. L.R. 65. (N) 4SCI 5 510 it was found that the Municipality was not entitled to levy any octroi duty on fuel oil or furnace oil which was not comprised within the items enumerated in the octroi rules and by laws. The respondent who had paid the tax instituted a suit for its recovery. One 'of the questions which arose for consideration was whether the provisions of section 206 of the Bombay Municipal Boroughs Act, 1925 corresponding to those of section 48 of the Central Provinces and Berar Municipalities Act, 1922 applied to the case. The learned Judges of the High Court held that what the municipality (lid was not an act done in pursuance of the Act, but it was an act which it purported to do in pursuance of the Act and that therefore its action was well within the terms of section 206. In the course of the judgment Bhagwati J., observed that the acts which fell within the category of those "done or purporting to have been done in pursuance of this Act" could only be those which were done under a vestige or semblance of authority or of a shadow of right. If an act was outrageous and extraordinary or could not be supported at all, not having been done with a vestige or semblance 'of authority, or a shadow of right invested in the party doing that act, it would not be an act which is done or purported to have been done in pursuance of the Act. The distinction is really between ultra vires and illegal acts, on the one hand, and wrongful acts, on the other wrongful in the sense that they purport to have been done in pursuance of the Act; they are intended to have been done in pursuance of the Act if they are done with a vestige or semblance of authority, or a sort of a right invested in the party doing those acts. The learned Judge then referred to certain decisions and said that under section 73(iv) of the Act power was given to the Municipality to impose octroi duty on articles and goods imported within its jurisdiction. What had happened there was that the defendants, on the interpretation which they gave to the words "oils used for machinery", did something which ultimately, on an adjudication in that behalf, the court found to be wrong. By acting in that way what the Municipality purported to do could not be said to be illegal or outrageous and extraordinary or done without having any vestige or semblance of authority or without even a shadow of a right. Apart from the fact that much of what was said in this case is opposed to a recent decision of this Court to which we will presently make a reference certain observations made by Bhagwati J., in fact lend support to the argument advanced before us by Mr. Patwardhan. The observations we have in mind are to the effect that where ,a municipality, not having the power to levy a particular tax at all, either wholly or in regard to some classes of goods, had purported to levy the same it would certainly be an act which was "outrageous and extraordinary, or done without having any vestige or semblance of authority or without even a shadow of a right". Here, the over stopping of its authority by the Municipality consists not in the matter of the selection of a class of goods but of that of the rate at 511 which it has levied and collected a tax. It has levied and collected a tax beyond constitutional limits. Therefore, to the extent it has done so the tax could properly be said to have been levied without a vestige or semblance of authority or even of a shadow of right. We may now refer to the recent decision of this Court in The Poona City Municipal Corporation vs Dattatraya Naresh Deo dhar(1). That was a case in which the Municipal Corporation had imposed a tax on the refund of octroi duty collected by it on goods imported within the Municipal limits of the city. Its practice was to deduct the tax from the amount which it was required to refund and pay the person entitled to the refund only the balance. A suit was instituted by the respondents for refund of the amount illegally deducted by the Corporation from the octroi refund made by the Corporation to the respondents. It was contended on behalf of the Corporation that the deduction made by it was valid and that the suit was barred by limitation. This Court upheld the contention of the respondents that the Corporation had no power to impose the tax and that in fact there was a prohibition against the imposition of such a tax by the Corporation. On the plea of limitation, which was founded upon the provisions of section 487 of the Bombay Act which are almost the same as those of section 48 of the Act with which we are concerned, this Court observed: "The benefit of this section would be available to the Corporation only if it was held that this deduction of ten per cent was 'an act done or purported to be done in pursuance or execution or intended execution of this Act. ' We have already held that this levy was not in pursuance or execution of the Act. It is equally clear that in view of the provisions of section 127 (4) (to which we have already referred) the levy could not be said to be 'purported to be done in pursuance or execution or intended execution of the Act. ' For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act. " Sub sec. (4) of section 127 of the Act to which this Court has referred is in the following terms: "Nothing in the section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution. " It is pertinent to bear in mind that the conclusion of this Court on the question whether the act was "done or purported to be done" under the Act was not based solely on this provision and reliance wag placed upon it as affording additional support to the conclusion already arrived at. It seems to us that this provision was enacted by way of abundant caution. For, the Constitution is the (1)[1964] 8 S.C.R. 178. 512 fundamental law of the land and it is wholly unnecessary to provide in any law made by the Legislature that anything done in disregard of the Constitution is prohibited. Such a prohibition has to be read in every enactment. This decision does appear to conclude the matter. During the pendency of the suit before the trial court the appellant had preferred a writ petition before the High Court at Nagpur in which it contended that the notification of April 10, 1941 enhancing the tax from one anna per bojha and one anna per bale to four annas per bojha and four annas per bale was illegal and ultra vires and should therefore be quashed. This petition was granted by the High Court on April 12, 1955. There was, therefore, a direct decision before the trial court and the appellate court which though it could not be treated as res judicata was binding on those courts and was treated as such by them and it is perhaps because of this that it was not sought to be urged on behalf of the Municipal Committee when the second appeal was argued before the High Court that the notification is valid and, therefore, the Municipal Committee could recover the tax at the enhanced rate. Though Mr. Viswanatha Sastri did say that the decision of the High Court is not res judicata he did not directly challenge its correctness. What he argued was as follows: The levy of a tax on professions, trades, callings etc. was within the power of the Provincial Legislature and is now within the power of the State Legislature. It could in the past and can even now levy such a tax at the rate of 4 annas per no ha and 4 annas per bale, that both under section 142 A of the Government of India Act and article 276 of the Constitution the Municipal Committee could collect such a tax to the constitutional limit (which was formerly Rs. 50 p.a. and is after the coming into force of the Constitution Rs. 250 p.a.). The mischief, according to him, is not in the levy but in the realisation of an excess over the limit. To put it differently, the ban is not upon the rate of tax but upon excess collection thereof. Therefore, the collection of a tax above the constitutional limit was not without jurisdiction but only illegal or irregular. A suit by an assessee to recover the amount paid by him in excess of the constitutional limit would therefore be in respect of a matter "purported to be done" under the Act and the provisions of section 48 of the Act would apply to it. Further according to him every suit against a Committee for anything done or purported to be done under the Act must comply with the conditions laid down in the section. He points out that the assessment of the tax was made by an authority competent to make an assessment, that in making it the authority proceeded in accordance with the provisions of the Act and assessed the tax as authorised by Rules which had been sanctioned by the former Government of Central Provinces and Berar. So, even it is assumed that any of 513 the Rules were ultra vires and therefore the assessment and recovery of the tax was illegal, what the authority had done was something purported to be done under the Act. Some of these arguments were advanced in cases discussed earlier and rejected. In support of his contention he placed reliance on the decisions in Richard Spooner and Bomanjee Nowrojee vs Juddow(1) and Dhondu Dagdu Patil vs The Secretary of State for India(2). These cases were not pressed in aid in the decisions so far considered and we would deal with them now. Before we deal with these cases it is necessary to point out the rationale upon which section 142 A of the Government of India Act, 1935 was enacted and on which article 276 of the Constitution now rests. It is that the legislative spheres of the Provinces and the Centre came to be clearly demarcated in regard to items falling within Lists 1 and 11 of Schedule VII of the Government of India Act and now to those falling within the same lists of Schedule VII of the Constitution. Taxes on professions, trades, callings and employments are taxes on income and are thus outside the provincial/and now State list and belong exclusively to Parliament and before that to the Central Legislature. Yet under a large number of laws enacted before the Government 'of India Act, 1935 came into force, power was conferred on local governments and local authorities to impose taxes on such activities. This was obviously in conflict with section 100 of the Government of India Act. When this was realised section 142 A was enacted by the British Parliament which saved the power conferred by pre existing laws but limited the amount payable to Rs. 50 after 31st March, 1939. A saving was made, however, of pre existing laws subject to certain conditions with which we are not concerned. The provisions of this section have been substantially reproduced in article 276 of the Constitution with the modification that the upper limit of such tax payable per annum would be Rs. 250 instead of Rs. 50. A tax can be recovered only if it is 'payable ' and it would be, payable only after it is assessed. it is, therefore, futile to contend that the ban placed by the aforesaid provisions extends only to recoveries and not to an earlier stage. Now coming to the cases, the first was one in which the question considered by the Privy Council was whether the Supreme Court at Bombay was competent to entertain a suit for recovery of damages brought by one Harkissondas Hurgovindass against the Collector of Bombay and others in respect of trespass and nuisance committed by certain officers of the Collectorate while purporting to execute a distress warrant issued against one Narrondass for non payment of arrears of land revenue. Under the Letters Patent dated Dec. 8, 1823 the jurisdiction of the Supreme Court was barred "in any matter concerning the revenue under the management of the (1) 4 MI.A. 353, 379. (2) I.L.R. , 106. 514 said Governor and Council of Bombay respectively. or concerning any act done according to the usage and practice of the country, or the regulations of the Governor and Council of Bombay aforesaid. " Similar provisions were contained in section 8 of Statute 21 Geo. 111, c. 70. The Supreme Court over ruled the defendant 's contention on the ground that what was due from the plaintiff was not revenue but a perpetual ground rent which was incapable of being enhanced and could not be regarded as revenue at all. After holding so Lord Campbell who delivered the opinion of the Judicial Committee observed: "The point, therefore, is, whether the exception of jurisdiction only arises where the Defendants have acted strictly, according to the usage and practice of the contrary, and the Regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory; for if the Supreme Court is to inquire whether the Defendants in this matter concerning the public revenue were right in the demand made, and to decide in their favour only if they acted in entire con formity to the Regulations of the Governor and Council of Bombay, they would equally be entitled to succeed, if the Statutes and the Charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon such enactments, and there can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of Statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act. In this case it may well be that the warrant against the goods of Tookaydass did not authorise the taking of the goods of Hurgovindass, or even that Hurgovindass might not be liable for the arrears of 'quit rent ' which accrued before he became owner of the house. Still the Collector was evidently of opinion, that a distress might be made for the whole of the arrears due, and that it was sufficient to introduce into the warrant the name of Tookaydass, in whose name the house continued to be registered. The other Defendant never could have doubted the sufficiency of the warrant. If Indian revenue officers have fallen into a mistake, or without bad faith have been guilty of an excess in executing the duties of their office, the object of the Legislature has been, that they should not be liable to be sued in a civil action before the Supreme Courts. " Later in his opinion Lord Campbell said: "If it concerned the revenue, or was a matter concerning an act bona fide believed to be done according to the Regulations of the Governor and Council of Bombay, his (i.e., of the Judge of the Supreme Court) jurisdiction was gone, although prima 515 facie it appeared to be a trespass over which his jurisdiction might be properly exercised." This case would have assisted Mr. Sastri only if what was done was something which could legally have been done by the Municipality but was wrongly done by it as, for instance, the collection of a lawful tax from a person other than the one from whom it was due. But this decision is no authority for the proposition that if the Collector recovered or tried to recover from a person a sum of money as arrears of land revenue even though it did not fall within the definition of revenue or tried to collect a sum of money which he was expressly prohibited by law from collecting, he would still be said to have purported to act under the revenue law which empowered him to collect land revenue. If an act of trespass was committed in execution of a distress warrant for recovery of such monies. a suit for damages would not. have been barred. in the next case what the High Court was dealing with was the claim of the plaintiff against the Government for damages occasioned by the wrongful cancellation of his licence to sell liquor. The suit had been dismissed by the trial judge as barred by the provisions of section 67 of the Bombay Abkari Act, 1878, firstly because the Collector had acted bona fide in pursuance of the Act and secondly because it was not instituted within four months from the date of the act complained of. The High Court upheld the dismissal of the suit and in the course of its judgment observed: "It is quite true that the Collector 's action is not strictly in conformity with the section which authorises the revocation only on the actual conviction of the licensee. But the circumstances under which the Collector acted are so near the circumstances legally entitling him to act as he did that we feel bound to say the act was done in pursuance of the Statute. The law upon this point may be found stated in many cases, of which we may notice Hermann vs Saneschal(1). In strictness, anything not authorized by a Statute cannot be said to be in pursuance of it, while if it is authorized by the Statute clearly it would need no other protection. But if effect were given to such a construction it would altogether do away with the protection intended to be given; accordingly the general principle is that if any public or private body charged with the execution of a Statute honestly intends to put the law in motion and really and not unreasonably believes in the existence of facts. which, if existent, would justify his acting and acts accordingly. his conduct will be in pursuance of the Statute and will be protected." The learned Judges then referred to Spooner 's case(2) also. Mr. Sastri laid particular emphasis on the concluding portion (1) ; (2) 4 M.I.A. 353, 379. 516 of the observations quoted above. This again, it may be said, is not a decision which is quite in point. There was no want of jurisdiction in the Collector to do what he did but there was only the absence of facts which, had they existed would have given him power to do what he did. Cases of this type must be distinguished from those like the present in which we must imply a constitutional or statutory prohibition against the act done. Where such prohibition exists or can be implied, anything done or purported to be done by an authority must be regarded as wholly without jurisdiction and is not entitled to a protection of the law under colour of which that act was done. It is true, as urged by Mr. Sastri, that it was within the competence of the respondent committee to raise the rate of tax from one anna to four annas per bojha and bale even after the coming into force of section 142 A of the Government of India Act, 1935. The levy of tax at that rate cannot, therefore, be regarded to be beyond the jurisdiction of the respondent so long as the constitutional limit was not exceeded. What is, however, contended on behalf of the appellant is that the action of the Committee in compelling it to pay the tax in excess of the amount which was constitutionally recoverable from it in respect of any one year was ultra vires, that thereby the provisions of section 142 A have been transgressed and, therefore, this was a case of utilization by the Committee of the provisions of the Act and the rules made thereunder for doing something which was prohibited by the Government of India Act, 1935 and is now, by the Constitution. It is true that the Committee had jurisdiction to recover an amount up to the constitutional limit. But it cannot fairly be contended on its behalf that merely because of this, that the recovery by it of an amount in excess of the constitutional limit was only irregular or at the worst illegal. Where power exists to assess and recover a tax up to a particular limit and the assessment or recovery of anything above that amount is prohibited the assessment or recovery of an amount in excess is wholly without jurisdiction and nothing else. To such a case the Statute under which action was purported to be taken can afford no protection. Indeed, to the extent that it affords protection, it would be bad. But where, as here, the validity of a provision of a statute can be upheld upon a possible construction of that provision it would be the duty of the court to so construe it as to avoid rendering the provision unconstitutional and reject a construction which will invalidate the provision. The final contention urged by Mr. Sastri is based upon the decision of the Privy Council in Raleigh Investment Company Ltd. vs Governor General in Council(1). His argument is that the Municipalities Act contains adequate provisions dealing with refund of taxes and that the provisions of section 85(2) bar a suit for recovery of a (1)74 I.A. 50. 517 tax wrongfully recovered by the Municipal Committee. It may be mentioned that the contention was not raised in the suit or in the grounds of appeal before the High Court and has not therefore been considered by it. It has been raised for the first time in the statement of case. But the scope of an appeal cannot, even at the instance of the respondent who is entitled to support a decree in his favour even upon a ground found against him by the High Court. be permitted to be enlarged beyond that of the appeal before the High Court or the courts below. But as it is a question of consider able importance and might be raised in other similar suits which are said to be pending, we propose to deal with it. Before dealing with Raleigh Investment Co. 's case(1) we may refer to the provisions of the Act which Mr. Sastri placed before us. 83(1) provides for an appeal against the assessment or levy of or refusal to refund any tax under the Act before the Deputy Commissioner and sub section (1 A) for a revision before the State Government. Sub sec. (2) provides that if the authority hearing the appeal or revision entertains a reasonable doubt on any question as to the liability to or the principles of assessment of a tax it shall draw up a statement of the facts of the case and the point on which the doubt is entertained and refer the statement with his own opinion on the point for the decision of the High Court. There is, however, no express provision like that of section 31(1) or section 33(4) of the Indian Income tax Act entitling the assessee to a hearing either in the appeal or revision petition. Section 85 empowers the State Govern ment to make rules for regulating the refund of taxes, and such rules may impose limitations on such refunds. Sub section (2) thereof provides that no refund of any tax shall be claimable by any person otherwise than in accordance with the provisions 'of this Act and the rules made thereunder. This sub section can be availed only if the Act or the rules provide for making a claim for refund. The rules relating to refunds, if there are any, were, however, not placed before us. Nor was our attention drawn to any provision of the Act or to any rule which makes it obligatory upon a person to apply to the Municipal Committee for a refund of a tax. Even assuming that the Act contemplates obtaining a refund only upon compliance with rules made thereunder, does it contemplate cases where refund or repayment on the ground of the unconstitutionality of the levy? It will be noticed that sub section (1) of this section empowers the State Government to impose by rules limitations on the refunds presumably including limitation on the amount of refunds and sub section (2) bars a claim for refund otherwise than in accordance with the rules made under sub section These provisions cannot possibly apply to case where the right to obtain a refund or repayment is based upon the ground that the action of the Committee was in violation of a constitutional provision. To hold otherwise would lead to the startling result (1)74 I.A. 50. 518 that what was incompetent to the State Legislature to do or authorise a committee to do directly can be permitted to be done indirectly by empowering the State Government to make rules for refund where under the amount 'of refunds could be so limited as to permit retention by the committee of the tax recovered by it in excess of the constitutional limit. In our view, therefore, section 85 of the Act cannot, in any event, be said to provide a machinery for obtaining refunds in cases of this kind. Since section 85 is inapplicable, a fortiori section 83 cannot apply either. We must therefore proceed on the footing that the Act does not provide a machinery for making a claim for refund or repayment in such cases. It would be pertinent to advert also to the provisions of section 84, sub section (3) of which deals with "Bar of other proceedings". Sub section (1) provides for the period of limitation for an appeal under section 83(1). Sub sec. (2) empowers the appellate authority to require the assessee to deposit the tax before the hearing or the decision of the appeal. Sub sec. (3) is in the following terms: "No objection shall be taken to any valuation, assessment, or levy, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act. " It will be seen that there is no express mention of a civil court in this sub section as there was in section 67 of the Indian Income tax Act, 1922. In fact section 48 of the Municipalities Act contemplates the institution of a suit subject to fulfillment of certain conditions and thus indicates that it was not the intention of the legislature to make the machinery provided by the Act exclusive. But even if a bar to the Jurisdiction of a civil court be assumed or implied, there is an absence of a reference to "refund" in sub section (3) of section 83, In other words, no finality seems to have been given to a decision rendered by an authority under section 83 refusing to refund a tax improperly or 'File ally assessed or recovered. In the light of these circumstances we have to consider the applicability of the decision in Raleigh Investment Co. 's case(1). In that case the Privy Council considered the effect of certain provisions of the Indian Income tax Act, 1922 which prescribed remedies to an assessee who sought to challenge the assessment made against him and also the provisions of section 67. The relevant portion of section 67 was that "no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. . After examining all these provisions the Privy Council said that an effective and appropriate machinery was provided by the Act itself for the review of any assessment on grounds of law, including the question whether a provision of the Act was ultra vires and it was in that setting that section 67 had to be construed. Then it went on to say that the phrase "assessment made under this Act" in section 67 meant an assessment finding its origin in an activity of the assessing officer acting as such and that the circumstance that (1)74 I.A. 50. 519 he had taken into account an ultra vires provision of the Act was in that view immaterial in determining whether the assessment was " made under this Act. " But, with respect, we find it difficult to appreciate how taking into account an ultra vires provision which in law must be regarded as not being a part of the Act at all, will make the assessment as one 'under the Act '. No doubt the power to make an assessment is conferred by the Act and, therefore, making an assessment would be within the jurisdiction of the assessing authority. But the jurisdiction can be exercised only according, as well as with reference, to the valid provisions of the Act. When, however, the authority travels beyond the valid provisions it must be regarded as acting in excess of its jurisdiction. To give too wide a construction to the expression "under the Act" may lead to the serious consequence of attributing to the legislature, which owes its existence itself to the Constitution, the intention of affording protection to unconstitutional activities by limiting challenge to them only by resort to the special machinery provided by it in place of the normal remedies available under the Code of Civil Procedure, that is, to a machinery which cannot be as efficacious as the one provided by the general law. Such a construction might necessitate the consideration of the very constitutionality of the provision which contains this expression. This aspect of the matter does not appear to have been considered in Raleigh Investment Co. 's case(1). This decision has been briefly referred to by this Court in Firm and Iliuri Subbayya Chetty & Sons vs The State of Andhra Pradesh(2) and what this Court has observed is this: "In determining the effect of section 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee affectively to raise in courts the question whether a particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery observed the judgment, though by no means conclusive, marches with a construction of the section which denies an alternative jurisdiction to enquire into the same subject matter. It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing pro vision can be challenged by adopting the procedure prescribed by the Income tax Act; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the Court under section 66(1) of the Act. It is not necessary for us to consider whether this assumption is well founded or not. But the presence of the alternative machinery by way of (1) 74 I.A. 50. (2) ; at 764, 520 appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal. " We have already adverted to the provisions of sections 83 and 85 of the Act which are the only provisions brought to our notice as providing a machinery under the Act for challenging an assessment and we have pointed out that they do not cover a case like the present. Again the provision for an appeal before a Deputy Commissioner who is an authority who performs numerous functions under different laws, functions which are executive, as well as administra tive and judicial, cannot be regarded as on par with one which provides for an appeal before an Appellate Assistant Commissioner under the Income tax Act, an authority whose duties are confined to matters arising under that Act. Further, the latter Act contains a safeguard in the shape of an appeal to the Income tax Appellate Tribunal which deals exclusively with matters arising under that Act and is an independent tribunal. In the circumstances it must be held that even in the class of cases to which the provisions of sections 83 and 85 of the Municipalities Act apply they cannot be said to provide a sufficiently effective remedy to an assessee to challenge the assessment made against him or to a person who is aggrieved by the action of the Committee levying or refusing to refund a tax. It is true that Sub sec. (2) of section 83 provides for a reference to the High Court but even that provision cannot be said to be a sufficiently efficacious remedy for challenging the assessment made on an assessee. For whether to make a reference or not is at the discretion of the appellate or revisional authority and the Act does not confer upon the person aggrieved a right to move the High Court, as does the Income tax Act, to require a reference to be made in an appropriate case. We may again point out that there is a complete absence of a provision corresponding to section 67 of the Indian Income Tax Act barring the institution of a suit in so far as refusal of refund of a tax is concerned. In Secretary of State vs Mask & Co.(1) the Privy Council has observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. As earlier pointed out, this decision has been approved by this Court in the case of Firm and Illuri Subbayya Chetty & Sons(2). Further, one of the corollaries flowing from the principle that the Constitution is the fundamental law of the land is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. The Court must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution. So, whatever be the position with respect to section 67 of the Indian (1) [1940] 67 T.A. 222,226. (2) ; at 764. 521 Income tax Act, so far as section 83(3) of the Act is concerned, we find it reasonably possible to construe it as not depriving a person of his right to obtain redress from a civil court in respect of an amount recovered from him as a tax in violation of article 276 of the Constitution. We have already pointed out that no machinery is provided by the Act for obtaining a refund of tax assessed and recovered in excess of the Constitutional limit and that the machinery actually provided by the Act is not adequate for enabling an assessee to challenge effectively the constitutionality or legality of assessment or levy of a tax by a municipality or to recover from it what was realised under an invalid law. It is, therefore, not possible to infer that the jurisdiction of the civil court is barred. The decision in the Raleigh Investment Co. 's case(1) does not, therefore, help the respondent. Moreover, we must bear in mind the provisions of article 265 of the Constitution which preclude the levy or collection of a tax except by authority of law, which means only a valid law. There was no corresponding provision in the various Acts for the governance of India which preceded the Constitution. Under article 226 the Constitution has provided a remedy to a citizen to obtain redress in respect of a tax levied or collected under an invalid law. This remedy will not be affected by any provision like section 67 of the Indian Income tax Act or like section 84(3) of the Municipalities Act. We must not lose sight of the fact that what the appellant has claimed in the suit is the repayment by the Municipal Committee of an amount recovered by it in excess of that which under the Constitution it was competent to recover from the appellant. The appellant has not sought to modify or set aside any order made by an authority acting or purporting to act under the Act. No doubt, the relief of repayment is claimed on the ground that the enhancement of the rate is unconstitutional. No doubt also that the appel lant had sought a further relief of injunction. As regards the first, the position is that the High Court of Nagpur has held, in the petition under article 226 preferred by the appellant, the enhancement to be unlawful. This decision was rendered by the Court during the pendency of the suit and was binding on the civil court in which the suit was pending and has been in fact followed by it. As regards the relief of injunction, that relief became unnecessary because of the order made by the High Court in the Writ petition. It is apparently for this reason that the civil court did not award that relief to the appellant. In view of the High Court 's decision it was not at all necessary for the trial court to consider in the suit before it the question of the validity of the assessment by or collection of the tax but only to ascertain the amount which was payable to the appel lant and whether the suit was barred under section 48 or section 85(2) as contended by the respondent. In these circumstances, we are of opinion that the appellant 's suit cannot be said to be barred even if we interpret section 84(3) of the Municipalities Act in the same way as the Privy Council interpreted section 67 of the Indian Income tax Act. (2)74 1.A. 50. 522 We may further observe that where there is an express prohibition in a statute against a local authority from imposing a tax, as for instance the recovery in the Statute construed by this Court in the Poona City Municipal Corporation case(1) or where prohibition can be implied whether it be with regard to an item of taxation or with regard to the rate of tax or the quantum of tax payable by an individual assessee the action of a local authority or of any of its instrumentalities in transgressing that prohibition must be regarded as being in excess of its jurisdiction. Here there is a prohibition in section 142 A of the Government of India Act and now in article 276 of the Constitution, which preclude a State Legislature from making a law enabling a local authority to impose a tax on "profes sions, trades, callings and employments" in excess of Rs. 250 per annum. These provisions have to be read in the Act or to be deemed by implication to be there as the Constitution is the paramount law to which all other laws are subject as was the Government of India Act, 1935 before January 26, 1950. If therefore, after the date specified in section 142 A of the Government of India Act or after the commencement of the Constitution a local authority or any of its instrumentalities imposed or imposes a tax which is in excess of the permissible amount, it would be exceeding its jurisdiction and a provision like section 84(3) of the Act will not bar the jurisdiction of a civil court to entertain a suit instituted by a person from whom it is collected for the repayment of the money recovered from him in excess of the permissible amount. There is a real distinction between those cases where a suit was held to be incompetent and the kind of cases which we have before us. Thus where the question merely is, whether the assessment had been made according to law, the Assessing Officer of the Municipality having jurisdiction on the subject matter and over the assessee the provisions of section 84(3) may be a bar to a suit. Where, however, the question raised is as to the jurisdiction of the Assessing Officer to proceed against the assessee and levy on or collect from him an amount in excess of that permitted by the Constitution, the matter would be entirely out of the bar of that provision. Here since the Assessing Officer had no authority to levy a tax beyond what section 142 A of the Government of India Act, 1935 permitted or what article 276 permits his proceedings are void in so far as they purport to levy a tax in excess of the permissible amount and authorise its collection and the assessment order is no answer to the suit for the recovery of the excess amount. To this extent, even the order of assessment cannot obtain the protection of section 84(3) of the Act and, therefore, the appearances ' suit is maintainable. For all these reasons we hold that the High Court was in error in dismissing the appellant 's suit. We hold the same in the connected appeal and accordingly allow both the appeals with costs throughout. (1)[1964] 8 S.C.R. 178. 523 Raghubar Dayal J. We have given careful thought to the ques tions of law arising in this appeal, but regret we have not been able to agree with the view expressed by brother Mudholkar J. in the majority judgment. We need not recapitulate the facts which have been fully set out in the judgment of Mudholkar J. The questions of law which arise for determination are: (i) whether the respondent 's collecting the amount in excess of the amount which it could have collected on account of the tax on trade, in view of the provisions of article 276 of the Constitution, was 'an act done or purported to be done under the Act ' within the meaning of section 48(1) of the Central Provinces & Berar Municipalities Act, 1922 (Act 11 of 1922), hereinafter called the Act , and (ii) whether the suit is barred by section 84(3) of that Act. The question in short boils down to this: whether the expression 'anything done or purporting to be done ' under the Act will cover only those acts which would be in strict conformity with the provisions of the Act or will also cover such acts which the Municipal Committee is competent to do under the Act, but in doing which the Committee has, in some manner, acted beyond the provisions of the Act or beyond any other legal provision. Section 48 of the Act refers to suits against the Committee or any of the other specified persons acting under the directions of the Committee, for anything done or purported to be done under the Act. If a suit is for anything done or purported to be done under the Act, the necessary conditions laid down in the section are to be satisfied before the institution of the suit. One condition is that the suit is to be instituted after the expiration of two months after the service of a notice, in writing, to the persons mentioned in sub section Another is that suit be instituted within six months from the date of accrual of the alleged cause of action. If a suit is not instituted after giving notice or within this period, it has to be dismissed. The question then is: what is the present suit for? And it is only on the determination of the nature of the act to which the present suit relates that it can be said whether the suit is covered by section 48 for not i.e., whether the act can be said to be done or purported to be done under the Act. The plaintiff claims a decree for the amount alleged to have been illegally collected from him as tax and for a permanent injunction. The illegality of the collection is said to be on account of there being an upper limit for a person , s liability to tax on trade and calling, in view of section 142A of the Govern of India Act, 1935 (shortly referred to as the 1935 Act) and article 276 of the Constitution. The limit under the Constitution is Rs. 250. It was Rs. 50 under the 1935 Act. What was collected from the appellant was the tax assessed on him. According to the appellant, the amount assessed exceeded the legal limit and therefore what had been collected in excess of that limit was collected illegally. 524 We may now consider the procedure laid down for the collection of tax under the Act before we determine the nature of the alleged excessive collection of tax from the appellant. Section 66 empowers the Committee to impose the taxes enumerated in sub section (1), clause (b) of subs. (1) mentions a tax on persons exercising any profession or art, or carrying on any trade or calling, within the limits of the municipality. Sub section (2) empowers the State Government, by rules made under the Act, to regulate the imposition of taxes mentioned in the section and to impose maximum amounts of rates for any tax. The rate of tax fixed by Government Notification dated December 22, 1936 was enhanced by another Notification dated April 10, 1941. The former rate of one annual was enhanced to four annas. These notifications did not lay down any upper limit for the amount of tax payable by one person to the Municipality. The legality of the imposition is not questioned. The legality of the enhancement was questioned by the appellant through Miscellaneous Petition No. 389 of 1954 decided by the High Court on April 12. 1955. The appellant prayed, by that petition, for the issue of a writ prohibiting the Committee from collecting taxes tinder the notification of 1941. The High Court did not hold the notification to be bad in law. What it held was that the tax was invalid to the extent it offended against section 142A of the 1935 Act and that it was also invalid to the extent it offended against article 276 of the Constitution. The writ issued by the High Court was a writ of mandamus prohibiting the Municipality from resorting to the 1941 Notification for the purpose of collecting tax in excess of Rs. 250 per annum. The Municipality therefore was empowered to impose tax in accordance with the notification of 1941 and, in view of section 142A of the 1935 Act and article 276 of the Constitution, the total tax claimable on account of this tax from the appellant could not exceed Rs. 50 or Rs. 250 respectively during the period when section 142A was in force and later when article 276 came into force. The next step, after the imposition of a valid tax, according to the Act, relates to the assessment of tax on the person 's liability to pay it. Section 71 empowers the State Government to make rules under the Act regulating assessment of tax and for preventing the evasion of assessment and section 76 empowers the State Government to make rules regulating the collection of taxes. The rules for assessment and collection of taxes framed in 1936 were notified on December 22, 1936. Rule 1 required a person carrying on the trade of ginning or pressing cotton into bales by means of steam or mechanical process to furnish to the Committee, annually, a return in the prescribed form which required the furnishing of the number of bojhas ginned and the number of bales pressed, with the total weight in maunds during the financial year in each case. This information was necessary as the rate of tax related to a bojha of 392 lbs. ginned cotton and a bale of 392 lbs. pressed cotton. 525 Rule 4 provided that the tax would be assessed by a sub committee on the basis of the information received under certain rules including r. 1. Rule 5 required the communication of the amount of assessment to the assessee. Rule 6 provided that objections to the assessment would be received and considered by the sub committee if presented within a month from the date of communication of the amount of assessment to the assessee and that the decision of the sub committee would be final subject to the confirmation by the general committee. Rule 7 provided that the tax would be payable in one instalment on August 1, each year. Fresh rules were notified in 1941 and these were practically identical with the 1936 rules. It is not alleged that the tax assessed on the appellant during the periods in suit had not been assessed by following the procedure laid down in the rules. It follows from the statutory rules that once the tax is assessed according to The rules, the assessee becomes liable statutorily, to pay the assessed tax. Section 77 provides how any arrears of tax claimable by the Committee under the Act can be recovered. They can be recovered on an application to a Magistrate, by distress and sale of movable property of the defaulter within the limits of his jurisdiction. Sections 77A and 80 provide other procedure for arrears of certain taxes to be realised. Section 83 provides for an appeal, against the assessment or levy of or refusal to refund any tax under the Act, to the Deputy Commissioner or some other officer empowered by the State Government in that behalf. Sub section (1A) allows a person aggrieved by the decision of the appellate authority to apply to the State Government for revision of the decision on the grounds that the decision is contrary to law or is repugnant to any principle of assessment of tax or that the appellate authority has exercised jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law. Sub section (2) provides for a reference to the High Court by the appellate authority or the revisional authority on its own motion or on the application of any person interested, for the opinion of the High Court on any question as to the liability or the principle of assessment of tax if such a question arises on the hearing of the appeal or revision. sub section (3) of section 84 Provides "No objection shall be taken to any valuation, assessment, or levy, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act," p(N)4SCI 7 526 Section 85 reads: "(1) The State Government may make rules under this Act regulating the refund of taxes, and such rules may impose limitations on such refunds. (2)No refund of any tax shall be claimable by any person otherwise than in accordance with the provisions of this Act and the rules made thereunder. " It follows from the above provisions that an assessee has to pay the tax assessed and that if aggrieved with the assessment of tax he has to appeal against the assessment order. He can raise questions of law and fact in the appeal. The appellant, in the present case, could have appealed against the assessment on the ground that the amount assessed exceeded the limits laid down for the tax under section 142A of the 1935 Act if that applied at the time of assessment or under article 276 of the Constitution if the latter applied at the relevant time. His claim for the refund of any amount, if paid, would arise only after the amount assessed and paid is modified by the appellate or revisional authority. If that amount is not so modified, no question for the refund or repayment of any amount paid as tax under the Act arises. The statute provided for the assessment of tax and for its collection in case the assessee did not himself pay the assessed amount according to the rules. The present suit for the repayment of the amount alleged to have been realised illegally is in essence a, suit for firstly modifying the amount assessed and then to decree the payment of the amount held to have been paid in excess of the tax as modified by the Court. It follows therefore, to our mind, that the suit relates to the act of the Committee in assessing the appellant wrongly by ignoring the constitutional provision that the amount payable by a single person to the municipality for such tax was not to exceed a certain limit and that it is not merely with respect to the act of collecting the excess amount. In fact, the assessment of the entire tax was one act and so was the collection of the amount assessed. The act of assessing the tax or the consequential act of collecting the amount cannot be broken up into two acts (i) of assessing the tax upto the legal limit and (ii) of assessing the tax with respect to the amount in excess of the legal limit. Neither can the act of collection be broken up into two acts (i) of collecting the amount which can be legally assessed; and (ii) of collecting the amount in excess of the legally realisable amount of tax. The act of assessment or of collection therefore was an act done by the Committee Linder the provisions of the Act, though it may be, as appears to be the case, that it acted wrongly in assessing the tax at an excessive figure and consequently in collecting an amount in excess which could have been legally collected. The suit is therefore fully covered by the provisions of sub s, (1) of section 48 of the Act. 527 Sub section (2) of section 48, as already stated, provides that every such suit, i.e. a suit falling within Sub section (1) of that section, shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action. The suit was instituted in the instant case on December 6, 1952, more than 8 months after the date of recovery of most of the amounts alleged to have been illegally recovered from the appellant and, clearly, the suit for the recovery of such amounts bad to be dismissed. The taxes for the years 1951 52 were recovered in small amounts on January 17, 1952, March 13, 1952, March 31, 1952 and August 27, 1952. The suit for the amount recovered on January 17 was also instituted after the period of limitations No notice with respect to the alleged illegal collection of taxes in March and August 1952 had been given to the Municipal Committee as notice was given on January 10, 1952, prior to these collections and could not have possibly referred to them. The suit for these amounts also has to be dismissed as the condition precedent for the institution of the suit under sub section (1) of section 48 has not been satisfied. There is another reason which justifies the dismissal of the appellant 's suit, though the view of the High Court on that point is in favour of the appellant. In view of section 84(3) the assessment of the tax or the liability of the person assessed or taxed cannot be objected to in any manner or before any authority other than what is provided in the Act. Section 83 provides the procedure by which the assessment of tax can be questioned both on law and facts. The correctness of the assessment cannot be questioned by any other manner and questioning by instituting the suit in a Civil Court would be one such other manner. We have already indicated that in essence the present suit is a suit for the modification of the taxes assessed and for consequential order decreeing the repayment of the amount held to have been collected in excess of the amount so modified. In view of sub section (3) of section 84. exclusive jurisdiction to determine the correctness of the amount assessed is given to the authorities mentioned in section 83. The result is that no other authority can enter into the question of the correctness of the assessment on grounds of law or fact. The present suit is barred from the cognizance of the Civil Court. The views we have expressed find support from what has been decided by the Privy Council and this Court. We would first refer to those cases before dealing, with the cases relied on for the appellant in support of the contention that the Committee had no jurisdiction to assess the tax beyond the limit allowed by section 142A or article 276 and that therefore the act of the Committee was an act which could not be said to have been done or purported to have been done under the Act and that it was not necessary for the appellant to take recourse to the procedure laid down in ss, 48 and 83 of the Act. 528 In Raleigh Investment Co. Ltd. vs Governor General in Council(1) the Privy Council had to construe section 67 of the Income tax Act which provided: 'no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. . The, suit giving rise to the appeal before the Privy Council was for a declaration that certain provision of the Act was ultra vires the; legislative powers of the Federal Legislature, that therefore the appellant before the Privy Council was not liable to be assessed or, charged to tax in respect of certain dividends and the assessment was illegal and wrongful, for an injunction restraining the department from making assessment in future years in respect of such dividends and for the repayment of the amount said to have been illegally realised on account of the illegal assessment. The Privy Council said at p. 62: "In form the relief claimed does not profess to modify or set aside the assessment. In substance it does, for repayment of part of the sum due by virtue of the notice of demand could not be ordered so long as the assessment stood. " The same can be said with respect to the claim for repayment of the alleged illegal collection of the excess amount from the appellant. The Privy Council further said: "An assessment made under the machinery provided by the Act, if based on a provision subsequently held to be ultra vires, is not a nullity like an order of a court lacking jurisdiction. Reliance on such a provision is not an excess of jurisdiction but a mistake of law made in the course of its exercise. " In view of what the Privy Council has said, the Committee 's overlooking the constitutional provisions in the exercise of its jurisdiction to assess the tax will not make its assessment of the tax an assessment without jurisdiction but would only show that the Committee mad . a mistake of law in the course of the exercise of its jurisdiction. The Privy Council took into consideration the machinery pro vided in the Income tax Act for the assessee raising objections to the assessment made against him and held that effective and proper machinery was provided by the Act itself for the review on grounds of law. This was however not the reason for their construing section 67 in the way they did. In fact, they considered the construction of 67 clear and said: "Under the Act the income tax officer is charged with the duty of assessing the total income of the assessee. The obvious meaning, and in their Lordships ' opinion, the correct meaning, of the phrase 'assessment made under this Act ' is an assessment (1) LR. 74 I.A. 50. 529 finding its origin in an activity of the assessing officer acting as such. the circumstance that the assessing officer has taken into account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is 'made under this Act '. The phrase describes the provenance of the assessment: it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test. " These observations fully apply to the expression 'the assessment of any tax under the Act ' in sub section (1) of section 83. It follows that when the Committee made the assessment of the tax on the appellant the assessment was founded on the activity of the Committee acting as the assessing authority and the fact that it overlooked the constitutional requirement is immaterial in determining whether the assess ment is made under the Act. The expression 'made under the Act ' has no relation to the accuracy of the assessment in point of law. The expression 'assessment of any tax under the Act ' in section 83 is equivalent in its content to the expression 'assessment made under the Act '. Lastly, the final observations of the Privy Council in this case indicate that when an exclusive machinery for the determination of the tax is provided by the Act and the tax is assessed by that machinery, there arises a duty to pay the amount of tax demanded on the basis of that assessment and that the jurisdiction to question the assessment otherwise than by the use of the machinery expressly provided by the Act would be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The very fact that the appellant let the assessment become final without taking recourse to the procedure of appeal and revision laid down in section 83 of the Act and thus became liable under the statute to pay the amount assessed, makes his questioning the correctness of the amount through the Court inconsistent with that obligation. It appears that the Privy Council considered a special provision barring the taking of objection to assessment of tax by any authority to be unnecessary. It said at p. 65 : "The only doubt, indeed, in their Lordships ' mind, is whether an express provision was necessary in order to exclude jurisdiction in a civil court to set aside or modify an assessment. " This would meet the contention for the appellant that sub section, (3) of section 84 does not specifically refer to the Civil Court and therefore does not specifically bar jurisdiction of the Civil Court from taking cognizance of a suit relating to the assessment of tax. It may also be mentioned that section 84(3) of the Act, by its terms, refers to an objection to assessment and not to 'assessment under the Act or assessment made under the Act '. This makes the provisions of section 84(3) much wider in scope than those of section 67 of the Indian Income tax Act were. 630 The other case we would refer to is Firm & Illuri Subbayya Chetty & Sons vs The State of Andhra Pradesh(1). The appellant before this Court, in that case, sued the State of Andhra Pradesh for a decree for a certain amount on the ground that amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939. Section 18A of that Act provides that no suit or other proceeding shall, except as expressly provided in the Act, be instituted in any Court to set aside or modify any assessment made under the Act. This provision is practically identical in terms with that of section 67 of the Income tax Act which had been considered by the Privy Council in Raleigh 's Case(2). The contention raised before the Court was that if an order of assessment had been made illegally by the proper authority purporting to exercise its powers under the Act, such an assessment could not be said to be an assessment made under the Act. It was also contended that the use of the words 'any assessment made under this Act ' did not cover cases of assessment which purported to have been made under the Act. This Court said at p. 759: "The expression 'any assessment made under this Act ' is, in our opinion, wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment that clearly falls within the scope of s, 18A." The view expressed by this Court is practically the same as had been expressed in Raleigh 's Case (2). In fact, the only difference between the two cases appears to be that in the Privy Council case the illegality of the assessment was said to lie in basing the assessment on a provision which was said to be ultra vires the legislature while the illegality of the assessment made in the case before this Court lay in the alleged mistake of the assessing officer in construing certain transactions to be transactions of purchases though they were really transactions of sale, the tax being leviathan on purchases and not on sales. This Court referred to Raleigh 's Case(1) at p. 764 and did not express an opinion, on the view of the Privy Council that even the constitutional validity of the taxing provision could be challenged by adopting the procedure prescribed by the Income tax Act, a question which does not arise for consideration in the present case. We are therefore of opinion that the construction put on the expression 'assessment made under the Act ' in these two cases justifies the conclusion that the assessment of tax made on the appellant in this case is covered by sub section (1) of section 83 of the Act and (1) ; (2) 74 I.A. 50 531 amounts to 'an act done, under the Act ' for the purposes of sub section (1) of section 48 of the Act. It is therefore unnecessary to determine the scope of the expression 'an act purported to be done under the Act ' in sub section (1) of section 48. We may now briefly deal with the cases relied on for the ap pellant. Before, however, doing so, we may first deal with the case of Poona City Municipal Corporation vs Dattatraya Naresh Deodhar(1) decided by this Court. In this case the Poona Municipality had imposed a tax on the amount of octroi duty which had been levied on the goods imported within the Municipal limits but had been subsequently exported out of such limits within the specified periods. The Poona Municipality used to deduct 10 per cent of the amount to be refunded. This deduction was held to amount to a tax on the octroi refund. Such a deduction was imposed as a tax under section 59(b)(xi) of Act III of 1901. The tax continued after the 1901 Act was repealed by the Bombay Municipal Boroughs Act, 1925. The Boroughs Act was, in its turn, repealed by the Bombay Provincial Municipal Corporation Act, 1949. That Act was applied to Poona on February 15, 1950 and thereafter the powers of taxation of the Municipality were governed by section 127 of that Act which authorised the Corporation to impose the various taxes mentioned in that section. A tax on octroi refund was not one of such taxes. It could not come under cl. (f) which described: 'any other tax which the State Legislature has power under the Constitution to impose in the States '. The State Legislature had no power under the Constitution to impose a tax on octroi refund. It was therefore held by this Court that the amount of tax on octroi refund could not be imposed by the Poona City Municipal Corporation. It was, after holding so, that reference was made to sub section (4) of section 127 which provided that nothing in that section would authorize the imposition of any tax which the State Legislature had no power to impose in the State under the Constitution, and it was said: "Apart from his absence of power to impose such a tax, which is clear from the earlier parts of section 127, we have the categorical prohibition in sub section 4 against the imposition of any such tax by the Corporation. " This reference was to emphasize that the impugned tax could not possibly be imposed under the Act. Sub section (4) appears to have been enacted as a matter of caution. There could be no necessity for sub section (4) as section 127 itself had provided for the taxes which could be imposed. Any tax which was not specified in the section could not possible be imposed by the Corporation. The legislature might have considered the possibility of any of the specified taxes not remaining in future within the legislative list of the State and (1)[1964] 8 S.C.R. 178. 532 therefore provided that in such a contingency a tax though specified in the section will not be imposed. The provision of sub section (4) did not in any way affect the decision of this Court in holding that the Poona Municipal Corporation could not impose a tax on octroi refund. The other contention for the Poona Municipal Corporation was that the suit was instituted beyond the period of limitation prescribed under section 487 of the 1949 Act. The suit would have been time barred if the act of the Corporation imposing the tax on octroi refund could be held to be 'an act done or purported to be done in pursuance or in execution or intended execution ' of the 1949 Act. This Court held that the tax was not levied in pursuance or in, execution of the Act and therefore the benefit of section 487 could not be available to the Corporation. The expression used in section 487 is different from the one used in section 48 of the Act. Apart from this consideration, the act of imposing the tax could not be said to have originated from any provision of the 1949 Act and therefore could not possibly be held to be an act done under the 1949 Act. We do not think this case can be taken to support the appellant 's contention that the assessment of the tax on it and the consequential collection of the amount in excess of the limit laid down by article 276 of the Constitution was not an act done under the Act. The appellant has mainly relied on the cases decided by the Nagpur High Court and a brief reference may now be made to them. We may refer to the case reported as The Amraoti Town Municipal Committee vs Shaikh Bhikan(1) first. The plaintiffs had sued to recover the tax which had been collected from them in excess of the lawful rate. The suit was instituted after the plaintiffs had obtained a declaration that the enhancement of the tax over that rate was illegal. The Municipal Committee had power to impose and enhance the tax. It however had enhanced the tax without following the entire procedure laid down for such enhancement and had omitted to consider the objections filed against the proposed enhancement. The question before the 'High Court was whether the collection of the tax at the enhanced rate was an act which fell within the ambit of the expression 'anything done or purported to be done under the Act ' which Act, it may be mentioned, was the C.P. & Berar Municipalities Act, 1929, the very Act with which we are concerned in the present appeal. Niyogi J. expressed at p. 219 his agreement with the principle that if the Municipal Committee exercised a power which it did not possess, it should not be regarded as acting in pursuance of the statute governing its affairs and its acts should not be regarded as being done under the statute, and further stated that principle however did not help the Municipal Committee, the appellant before him. (3) I.L.R. 533 Niyogi J. then said, after noticing the failure of the Municipal Committee to consider the objections to the proposed taxes: "Now there can be no question that the municipal committee, in imposing and collecting tax at four annas per animal, was acting exactly in accordance with section 68. It must be observed that there is a difference between a case when a corporate body exercises a power which is wholly absent and a case where it has power but it exercises it illegally or with material irregularity. In the former case the municipal committee 's act from beginning to end is illegal; whereas in the latter case the act is quite legal in the beginning but becomes illegal in the end.". Again he said: "In enhancing the tax and collecting it the municipal committee was certainly exercising although irregularly, the power conferred on it by section 68 and to that extent it appears to me that the contention that they were not acting under the statute is untenable. " The views expressed by Niyogi J., we may say with respect, find full support from Raleigh s Case(1) and Subbayya Chetty 's Case(2). Amraoti Municipal Committee 's Case(3) was in a way on all fours with the present case. In that case the Municipal Committee overlooked the provision of law about considering the objections to the proposed enhancement in tax. In the present case the Committee overlooked the constitutional requirement that the maximum limit of the tax payable by a single individual is Rs. 250. The next case is District Council, Bhandara vs Kishorilal(4). In this case the question before Bose J. was whether a suit for the recovery of an amount recovered in excess of what could be legally taxed came within the mischief of section 71 and section 73(1) of the Central Provinces Local Self Government Act, 1920 (C.P. IV of 1920). Bose J. said at p. 92: "It will be observed that both section 79 and the rule are confined to orders and decisions given under the Act. It is impossible to say that an order which contravenes the law or is made in the face of an express statutory prohibition can be said to be under the Act. The words 'purporting to be given ' or 'made under the Act ' are not present in this section and so the difficulty which arises retarding the other point is not present here. " We do not see why an ordinary decision given under the Act be not considered to be an order made under the Act. Neither of the expressions refer to the order or decision being correct or not. (1)74 I.A. 50. (2)[1964] 1 S.C.R. 752. (3) I.L.R. (4)I.L.R. 534 Section 73 of the Central Provinces Local Self Government Act prescribed that no suit shall be instituted etc. . for anything done or purporting to be done under that Act, unless the prescribed notice be first given. Bose J. presumably in view of what he had said earlier in connection with orders and decisions given under the Act, said: "I am clear that what was done here was not done 'under the Act ', so the only question is whether it 'purported to be done ' under the Act." In these observationshe seems to have equated the expression ,given under the Act 'with 'done under the Act '. His view, as we have already pointed out with reference to something done under the Act, does not find support from Raleigh 's Case(1) and Subbayya Chetty 's Case(2). BoseJ. then considered the content of the expression 'purported to bedone '. We need not discuss what he says on this point as we haveheld that the assessment made on the appellant was an assessment made under the Act and that the act of, illegal collection with respect to the amount in excess was an act done under the Act. The appellant mainly relied on the Nagpur case reported as Municipal Committee, Karanja vs New East India Press Co. Ltd., Bombay. It was held in that case that a suit for refund of a tax, illegally imposed by the Municipal Committee was not barred by reason of sections 48, 83 and 84 of the Central Provinces Municipalities Act as the Municipal Committee did not act or purport to act under the Act in imposing the illegal tax. Bose, Acting C.J., delivering the judgment, relied on his earlier decision in District Council, Bliandara Case(1) and held that the claim for the recovery of the tax illegally reallised in excess of the permissible limit were not barred by reason of sections 83 and 84. He then referred to section 48 and, after stating that the act of the Municipality when prohibited by law was wholly beyond its jurisdiction and therefore section 48 did not apply, said: "The distinction between a case where section 48 applies and a case where it does not is clearly shown in The Amraoti Town Municipal Committee vs Shaikh Bhikan(4). " We have referred to this case and expressed full agreement with the views expressed by Niyogi J. there. It appears to us that the full significance of that judgment has been overlooked in Municipal Committee, Karanja Case(3). We bold that the appellant 's suit for the recovery of the tax realised in excess of Rs. 250 a year has been rightly dismissed as (1) 74 I.A. 50. (2) ; (3) I.L.R. (4) I.L.R. 535 the correctness of the assessment of the tax could not be challenged by a suit in a Civil Court in view of section 84(3) and as the provisions of section 48 requiring the giving of notice to the Municipality and the institution of the suit within a certain period had not been complied with. We would therefore dismiss the appeal with costs. ORDER In view of the majority judgment, the appeal is allowed with costs throughout.

The appellant was paying a tax at the rate of one anna per unit weight of cotton, under section 66(1)(b) of the Central Provinces Municipalities Act. 1922, from 1936. In all 1941 the rate of tax was increased to 4 as. In 1952, the appellant filed a suit for recovery of the excess,tax paid within 3 years of the date of suit. It was contended that after the coming into force of section 142A of the Government of India Act, 1935, on 1st April 1939, till 25th January 1950, a tax in excess of Rs. 50 per annum could not be imposed by the respondent, and, after the coming into force of the Constitution the upper limit of the tax was raised to Rs. 250 per annum under article 276 of the Constitution; and that as the appellant was already paying more than this amount per year even at the rate of one anna, the enhanced rate of 4 annas was illegal. The trial court decreed the suit for recovery from the Municipal Committee of excess tax paid by the appellant within 3 years of the date of suit but on appeal, the High Court held that the suit was bad for non compliance with the requirements of section 48 of the Act, according to which a suit for anything done or purported to be done under the Act shill be instituted only after the expiration of 2 months after serving a written notice and within six months from the date of the accrual of the alleged cause of action. In its appeal to this Court, the appellant contended that it was a case of recovery of an illegal tax and therefore, a, claim for its refund fell outside the provisions of section 48. The respondent contended that (i) since the ban was not upon the rate of tax but upon the excess collection thereof, the collection of a tax above the constitutional limit was not without jurisdiction but only illegal or irregular and therefore, the suit would be in respect of a matter "Purported to be done under the Act" and the provision of section 48 would apply, and (ii) on the basis of Raleigh Investment Company Ltd. vs Governor. General in Council, (74 I.A. 50) the suit was barred by section 84(3) of the Act, which enacts that no objection shall be taken to any assessment in any other manner than is provided in the Act. HELD (Per K. Subba Rao, J. R. Mudholkar and V. Ramaswami JJ.): (i) Since the respondent had no authority to levy a tax beyond what section 142A of the Government of India Act, 1935, or what article 276 permitted, the assessment proceedings were void in so far as they purported to levy a tax in excess of the permissible limit and authorise. Its collection, and the assessment order would be no answer to the suit for the recovery of the excess amount, and therefore, the suit was maintainable. [522G H] The Constitution is the fundamental law of the land and it is unnecessary to provide in any law that anything done in disregard of the Constitution is prohibited, Such a prohibition has to be read into 500 every enactment, and where such prohibition exists or can be implied, anything done or purported to be done by an authority must be regarded as wholly without jurisdiction, and is not entitled to a protection of the law under colour of which that act was done. [512A B; 516B C] Poona City Municipal Corporation vs Dattatraya Nagesh Deodhar.[1964] 8 S.C.R. 178, followed. (ii)A tax can be recovered only if it is "payable" and it would be payable only after it is assessed. It is therefore futile to contend that the ban placed by section 142A of the Government of India Act and article 276 of the Constitution, extends only to recoveries and not to an earlier stage. [513G] It is true that the respondent had jurisdiction to recover an amount up to the constitutional limit. But it cannot be contended that merely because of this, the recovery by the respondent of an amount in excess of the constitutional limit was only irregular or at the worst illegal. Where power exists to assess and recover a tax up to a particular limit and the assessment or recovery of anything above that amount is prohibited, the assessment or recovery of an amount in excess is wholly without jurisdiction. To such a case, the statute under which action was purported to be taken can afford no protection. Indeed, to the extent that it affords protection it would be bad. But it is the duty of the court to so construe it as to avoid rendering the provision unconstitutional, that is, to construe section 48 as affording protection only if what was done was something which could legally have been done by the respondent but was wrongly done by it, and reject a construction which will invalidate the provision. [515B; 516B H] (iii)The appellant 's suit could not be barred even if section 84(3) of the Act is interpreted in the same way as the Privy Council interpreted section 67 of the Income tax Act, in the Raleigh Investment Co. 's case. Unlike the Income tax Act the Act does not provide a machinery for making a claim for refund or repayment on the ground of the un constitutionality of the levy, and the jurisdiction of the civil court in cases of refund is not taken away. Even in the class of cases to which the provisions of sections 83 and 85 of the Act, which are the only provisions providing a machinery under the Act for challenging an assessment, apply, they cannot be said to provide a sufficiently effective remedy to an assessee. A reference to the High Court is only at the discretion of the appellate or revisional authority and the person aggrieved has no right to move the High Court. Besides, in the Raleigh Investment Co. 's case, the expression "assessment made under this Act was given too wide a construction, because, it is difficult to appreciate how taking into account an ultra vires provi sion, which in law must be regarded as not being a part of the Act at all, will make the assessment as one under the Act. [517G; 518B, F, H; 519A B; 520D F; 521H] The exclusion of the jurisdiction of the civil court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. One of the corollaries flowing from the principle that the Constitution is the fundamental law is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. Moreover the provisions of article 265 of the Constitution preclude the levy or collection of a tax except by authority of law, which means only a valid law. There was no corresponding provision in the various Acts for the governance of India which preceded the Constitution and the decision in the Raleigh Investment Co. 's case was given in that context. Further under article 501 226, the Constitution has provided a remedy to a citizen to obtain redress in respect of a tax levied or collected under an invalid law, and this remedy will not be affected by any provision like section 67 of the Income tax Act, or section 84(3) of the Act. [520G H; 521C E] Thus, when the question merely is whether the assessment had been made according to law, the respondent having jurisdiction over the subject matter and the assessee, the provisions of section 84(3) may be a bar to a suit. But, where the question raised is as to the jurisdiction of the respondent to proceed against the assessee, and levy on or collect from him an amount in excess of that permitted by the Constitution, the matter would be entirely out of the bar of that provision. [522E G] Per Raghubar Dayal and Bachawat, JJ. (dissenting): The appellant 's suit for the recovery of the tax realized in excess of Rs. 250 a year was rightly dismissed, as the correctness of the assessment of the tax could not be challenged by a suit in a civil court in view of section 84(3) and as the provisions of section 48, requiring the giving of notice to the respondent and the institution of the suit within a certain period, had not been complied with. [534H; 535A B] The suit was in essence a suit for, first, modifying the amount assessed and then to decree the payment of the amount held to have been paid in excess of the tax as modified by the court. But the act of assessing the tax or the consequential act of collecting the amount cannot be broken up into two acts, one, upto the legal limit and the other in excess of it. The act of assessment or of collection therefore was an act done by the respondent under the provisions of the Act, though it acted wrongly in assessing the tax at an excessive figure, and consequently in collecting an amount in excess of that which could have been legally collected. The suit was therefore fully covered by section 48 and had to be dismissed. [526E H] In view of section 84(3), exclusive jurisdiction to determine the correctness of the amount assessed is given to the authorities mentioned in section 83. The result is that no other authority can enter into the question of the correctness of the assessment on grounds of law or fact, and therefore the appellant 's suit was barred from the cognizance of the civil court. [527G] Raleigh Investment Co. Ltd. vs Governor General in Council, L.R. 74 I.A. 50 and Firm of Illuri Subbayya Chetty & Sons vs State of Andhra Pradesh; , , followed. Poona City MuniciPal Corporation vs Dattatraya Nagesh Deodhar, ; , distinguished.

Civil Appeal No 797 of 1976. From the Judgment and Order dated 14.7.1972 of the Calcutta High Court in Appeal No. 59 of 1971 V.C. Mahajan, Mrs. Subhadra and C.V. Subba Rao for the Appellants. Harish N. Salve, Ravinder Narain, P.K. Ram, D.N. Mishra and K. Sukumaran for the Respondent. The Judgment of the Court was delivered by THAKKAR, J. Whether Section 12(2)1 of Foreign Exchange Regulation Act of 1947 (Act) designed to prevent wholesale or partial evasion of repatriation of earnings from export of goods covers only sale proceeds of goods exported "for sale* ' as held by the High Court of Calcutta by the judgment under appeal, or to sale proceeds of goods exported "on sale" in the context of sales completed before export also, as held by the Madras High Court2 and as contended by the appellants is the problem. "12(2) Where any export of goods has been made to which a notification under sub section (1) applies, no person entitled to sell, or procure the sale of the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing that (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, sub ject to such deductions if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid. Provided that no proceedings in respect of any contravention of this sub section shall be instituted unless the pre scribed period has expired and payment for the goods repre senting the full amount as aforesaid has not been made in the prescribed manner. " 2. R. Venkatasubbu and Ors. vs The Director of Enforcement. Enforcement Directorate, New Delhi and Anr., ILR Vol. 3MAD 1968 p.18. 985 The learned Single Judge of the Calcutta High Court dismissed a Writ Petition instituted by the Respondent Company and refused to quash two show cause notices dated November 5, 1966 issued under Section 12 (2) of the Act as it stood at the material time on taking the view canvassed by the appellants in this appeal. A Division Bench of the High Court however allowed the appeal preferred by the Respondent Company, reversed the order of the learned Single Judge dismissing the Writ Petition, and issued a Writ of Mandamus commanding the competent authorities under the Act (appellants herein) to forbear from giving effect to the said notices and from commencing any proceedings pursuant thereto. The competent authorities under the Act have ap proached this Court by way of the present appeal by a cer tificate under Article 133 (1)(a) of the Constitution of India. The hub of the argument addressed by the respondent company, which found favour with the Calcutta High Court, but failed to impress the Madras High Court, is the expres sion "no person entitled to sell or procure the sale of the said good" employed by the legislature in the opening part of Section 12(2) of the Act, which to the material extent deserves to be quoted: "12(2) Where any export of goods has 'been made to which a notification under sub section (1) applies, no person enti tled to sell, or procure the sale of the said goods shall, except with the permission of the Reserve Bank, do or re frain from doing anything or take or refrain from taking any action which has the effect of securing that . " The argument runs thus: Section 12 (2) of the Foreign Exchange Regulations Act 1942, on its plain terms, applies only to "persons" who are "entitled to sell or procure the sale of the said goods. " The word "entitled" governs the word "sell" as well as the expression "procure the sale of". Further, both these ex pressions are used with respect to the "said goods" which means the goods which have already been exported. It is in these premises submitted that Section 12(2) applies only to such persons who are entitled to sell or procure the sale of goods which have already been exported. We are not impressed by this submission that the afore said expression can be so narrowly construed so as to govern the scope of Section 12 (2) in such a truncated manner which renders it virtually 986 impotent in so far as transactions of "exports on sale" are concerned. Too much is being read into too little for no more laudable a purpose than to paralyze the provision. It appears to us that this expression does not necessarily induce one to the conclusion that the legislature wanted to prevent abuse in the context of exports for sale ' only. The expression is meaningful, relevant, and can co exist in the context of abuse arising from 'exports on sale ' from com pleted transactions as well. The expression "no person entitled to sell, or procure the sale of the said goods" is merely descriptive of the person who is accountable under the said provisions as has been held by the Madras High Court in R. Venkata Subbu 's case, I.L.R. Vol. 3 Madras , which has made a correct meaningful, and purposeful approach with which we unhesitatingly agree. The whole purpose is to 'identify ' the accountable persons to prevent malpractises and ensure compliance. It is conceivable that the exports might be made in the name of or through the agency of a person other than the 'owner of goods ' or the person entitled to sell the goods arising out of an 'export on sale. In our view, Anantaraman, C J, who spoke for the Madras High Court in Venkatasubbu 's case (supra) was right in taking the view that the words "no person entitled to sell or procure the sale of the goods" are descriptive words which refer to the person in the capacity of the seller of the goods or the person entitled to procure the sale of the goods after the export of the goods has been made and that this expression does not necessarily imply that the export must be to a nominee of the consignor at the other end in pursuance to a contemplated transaction of sale. We are therefore unable to accede to the submission urged on behalf of the Respondent Company (original Writ Petitioner) that Section 12 (2) can apply only to such persons who are enti tled to sell or procure the sale of goods which have already been exported for sale and not to the exports made in pursu ance to sales which have already been effected to a foreign buyer before the exports. In our opinion, the said expres sion has been employed by the Legislature merely in order to identify the accountable persons and is merely descriptive in that sense. The said expression does not restrict the operation of the Act to the persons who have not yet sold the goods. One would have to take a quantum jump in order to conclude that persons referred to in Section 12 (2) are the persons who have not yet sold the goods but are entitled to sell the goods in future merely because the expression 'entitled to sell ' has been employed. The persons who have exported the goods to a foreign buyer, in our view, are not sought to be excluded from the operation of section 12 (2). This conclusion is reinforced if clauses (a) and (b) of Section 12(2) are taken into account. Clause (a) in terms adverts to the sale of goods being delayed. Clause (b) of Section 12(2) adverts to payment for the goods, otherwise than in the 987 prescribed manner, and also envisions a case where the payment does not represent the full amount payable by the foreign buyer in respect of the goods. Clauses (a) and (b) are compatible both with transactions of export on sale as also to transactions of export for sale. They are compatible with all transactions pertaining to both types of sales. There is no warrant to assume that the Legislature has not made any provision in order to ensure that the full amount of the sale price is repatriated and foreign exchange earned therefrom is not lost to the Nation regardless of whether it is in respect of export on sale ' or 'export for sale '. The avowed and the evident object of Section 12 is to ensure that that the Nation does not lose foreign exchange which is very much essential for the economic survival of the Nation. The exporter cannot be allowed to syphon away a part of the foreign exchange or to deprive the Nation of the foreign exchange earned by the exports. Such is the philosophy of Sec. 12. To take the view that the legitimate National interest in the sphere of preservation of foreign exchange has relevance only in the context of transactions of exports for sales and that the Legislature exhibited total unconcern for the foreign exchange earned in the context of transac tions of completed sales or consignment sales, is to at tribute to the Legislature irrationality. And to impute to the Legislature that it did not know its job inasmuch as it has tackled the problem only partially without any rational basis for excluding the transactions of completed sales from the purview of the legislation which would substantially erode or defeat the purpose of the legislation. When it is equally possible to take the view which would be conducive to the conclusion that there is no lacuna in the legisla tion, it would be unreasonable to take the view that the Legislature has left a lacuna either by negligence or by lack of foresight or because it did not know its job. In order to escape from the clutches of this answer less argu ment learned counsel for the Respondent Company contended that in so far as completed sales are concerned, they would be governed by Section 10 1and that the lacuna argument would 1. Duty of persons entitled to receive foreign exchange etc. (1) No person who has a fight to receive any foreign exchange or to receive from a person resident outside India a payment in rupees shall, except with the general or spe cial permission of the Reserve Bank, do or refrain from doing anything or take or refrain from taking any action which has the effect of securing (a) that the receipt by him of the whole or part of that foreign exchange or payment is delayed, or, (b) that the foreign exchange or payment ceases in whole or in part to be receivable by him. (2) Where a person has failed to comply with the require ments of sub section(1) in relation to any foreign exchange or payment in rupees, the Reserve Bank may give to him such directions as appear to be expedient for the purpose of securing the receipt of the foreign exchange or payment as the case may be." 988 accordingly lose significance. It is our firm opinion that Sec. 10 has no application in respect of foreign exchange earnings related to export of goods. Section 10 is designed primarily to impose an obligation on persons who have a right to receive any foreign exchange from a person resident outside India. This section has nothing to do with the foreign exchange earned by export of goods. The entire matter pertaining to payments for exported goods and the foreign exchange earnings arising therefrom in our consid ered opinion, has been dealt with in Section 12 which is a complete Code in itself. It would be an irrational approach to make to hold that while Section 12 deals with payments for exported goods and foreign exchange earnings arising therefrom in all situations, it excludes from its purview one particular situation namely that arising in the context of failure to repatriate the sale proceeds of goods exported pursuant to a completed transaction of sale. Evidently Section 12 has been very carefully designed. Every possible situation has been conceived of and appropriate prophylactic measures to ensure the preservation of foreign exchange and prevention of syphoning off the foreign exchange, which is very much essential to the economic life of the Nation, have been embeded therein. The entire subject of foreign exchange earnings relatable to export of goods has been specifically and specially dealt with in Section 12. It would therefore be futile to search for an alibi in Section 10 merely in order to support the plea that Section 12 does not take within its fold the foreign exchange earnings relatable to transactions of completed sales. Pray what is the reason or the purpose for doing so? Why take care to deal with 'all ' matters pertaining to export of goods and foreign exchange earnings therefrom in Section 12, but even so exclude for eign exchange earnings arising out of completed transaction of sale from its scope and ambit? When there is a specific provision which can reasonably be interpreted to cover this aspect of foreign exchange earnings also, be embodied in Section 12, which appears to us to be a complete Code in itself. why leave this important vital matter of no less importance to be dealt with by section 10 which essentially deals with foreign exchange receivable from individuals and has nothing to do with export of goods? On a plain reading of Section 10, the matter pertaining to the foreign exchange earned by exports in the context of completed sales will not directly fail within the ambit of it. It will have to be strained beyond the point of endurance in order to accommo date this aspect. Section 10 is akin to a complementary provision which deals with preservation of foreign exchange which does not fall within a specific provision like Section 12. What is more, if completed transactions are excluded from Section 12, the purpose of the legislation 989 will not be served, because sub section (6) of Section 121 which has been designed to ensure compliance with the provi sions made in Section 12 (1) to Section 12(5) cannot be availed of. In that event, in regard to the persons who syphon off foreign exchange earned out of the transactions in the context of a completed sale or export on sale they cannot be dealt with under Section 12 (6) and no sanction to ensure compliance will be available. The Act will be thus rendered toothless to ensure compliance with evasion in the context of a completed sale. There is accordingly no compul sion of law, logic, or philosophy, to adopt such a view. We accordingly allow this appeal and set aside the order of the High Court quashing the show cause notices impugned in the Writ Petition by the original Writ Petitioner. The matter will now go back to the competent authority for proceeding in accordance with law. The competent authority will extend the time for showing cause to the Respondent Company and after affording a reasonable opportunity of hearing, proceed to pass appropriate orders in accordance with law as may be called for by the relevant records and the material and such materials as may have been produced, before him in the light of the cause shown by the Respond ent Company on merits in response to the show cause notice. It will be open to the competent authority to pass appropri ate order uninhibited by any observations which may have been made by the High Court touching the facts or merits of the case or in regard to the incidental matters. We issue this direction having regard to the fact that it was in the first instance for the competent authority to form an opin ion on merits on the basis of the relevant material in so far as the factual aspect was concerned. Since the High Court was quashing the notice on a jurisdictional issue there was no occasion for making any observation touching the facts of the case or the merits of the other contentions incidental thereto. We also wish to make it clear that the question regarding the validity or otherwise of the views expressed by the High Court in regard to points other than the aforesaid point regarding the applicability of Section 12(2) have been kept open for decision in future as and when an occasion arises. 12(6) "For the purpose of ensuring compliance with the provisions of this section and any orders or directions made thereunder, the Reserve Bank may require any person making any export of goods to which a notification under sub sec tion (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods has been, or will within the prescribed period be, paid in the prescribed manner. " 990 We should not be understood as having pronounced on these matters one way or the other. We, therefore, allow this appeal, set aside the order passed by the High Court and dismiss the Writ Petition instituted by the Respondents, with liberty to the parties to raise all contentions on facts and law barring the con tention that Section 12(2) of the Act is not attracted. No order as to costs. Appeal allowed.

Section 12(2) of the Foreign Exchange Regulation Act, 1947 which is designed to prevent wholesale or partial evasion of repatriation of earnings from export of goods is to the effect that 'where any expert of goods has been made to which a notification under sub section (1) applies, no person entitled to sell, or procure the sale of the said goods shall, except with the permission of the Reserve Bank . . ". In R. Venkata Subbu & Ors. vs The Direc torate of Enforcement, Enforcement Directorate, New Delhi & Anr., ILR Vol p. 18, the Madras High Court held that section 12(2) covers not only sale proceeds of goods exported "for sale" but also "on sale" in the context of sales completed before export, while the Calcutta High Court in the judgment under appeal held that it covers sale pro ceeds of goods exported "for sale" only. In view of the conflict of the opinions, the present appeal is by certifi cate. Allowing the appeal and remitting the matters to the Competent Authority, the Court, HELD: 1.1 The expression 'no person entitled to sell or procure the sale of the said goods ' cannot be so narrowly construed (as referable to goods which have already been exported), so as to govern the scope of section 12(2) in such a truncated manner which renders it virtually impotent in so far as transactions of 'exports on sale ' are con cerned. Too much is being read into too little for no more laudable a purpose than to paralyze the provision. The expression does not necessarily induce one to the conclusion that the legislature wanted to prevent abuse in the context of 'export for sale ' only. The expression is mean 982 ingful, relevant, and can co exist in the context of abuse arising from 'exports on sale ' from completed transactions as well. [985H;986B] 1.2 The said expression has been employed by the Legis lature merely in order to indentify the accountable persons and is merely descriptive in that sense. The said expression does not restrict the operation of the Act to the persons who have not yet sold the goods. One would have to take a quantum jump in order to conclude that persons referred to in section 12(2) are the persons who have not yet sold the goods but are entitled to sell the goods in future merely because the expression 'entitled to sell ' has been employed. The persons who have exported the goods to a foreign buyer, are not sought to be excluded from the operation of section 12(2). Clause (a) in terms adverts to the sale of goods being delayed. Clause (b) of section 12(2) adverts to pay ment for the goods, otherwise than in the prescribed manner, and also envisions a case where the payment does not repre sent the full amount payable by the foreign buyer in respect of the goods. Clauses (a) and (b) are compatible both with transactions of export on sale as also to transactions of export for sale. They are compatible with all transactions pertaining to both types of sales. There is no warrant to assume that the Legislature has not made any provision in order to ensure that the full amount of the sale price is repatriated and foreign exchange earned therefrom is not lost to the Nation regardless of whether it is in respect of 'export on sale ' or 'export for sale '. [986F. 987A C] 1.3 The avowed and the evident object of section 12 is to ensure that the Nation does not lose foreign exchange which is very much essential for the economic survival of the Nation. The exporter cannot be allowed to syphon away a part of the foreign exchange or to deprive the Nation of the foreign exchange earned by the exports. Such is the philoso phy of section 12. To take the view that the legitimate National interest in the sphere of preservation of foreign exchange has relevance only in the context of transactions of exports for sales and that the Legislature exhibited total unconcern for the foreign exchange earned in the context of transactions of completed sales or consignment sales, is to attribute to the Legislature irrationality. And to impute to the Legislature that it did not know its job inasmuch as it has tackled the problem only partially with out any rational basis for excluding the transactions of completed sales from the purview of the legislation which would substantially erode or defeat the purpose of the legislation. When it is equally possible to take the view which would be conducive to the conclusion that there is no lacuna in the legislation, it would be unreasonable to take the view that the Legislature has left a lacuna eitber by 983 negligence or by lack of foresight or because it did not know its job. [987B F] 2.1 Section 10 has no application in respect of foreign exchange earnings related to export of goods. Section 10 Is designed primarily to impose an obligation on persons who have a right to receive any foreign exchange from a person resident outside India. This section has nothing to do with the foreign exchange earned by export of goods. The entire matter pertaining to payments for exported goods and the foreign exchange earnings arising therefrom has been dealt with in section 12 which is a complete Code in itself. Section 12 has been very carefully designed. Every possible situation has been conceived of and appropriate prophylactic measures to ensure the preservation of foreign exchange and prevention of syphoning off the foreign exchange, which is very much essential to the economic life of the Nation have been embedded therein. The entire subject of foreign ex change earnings relatable to export of goods has been spe cifically and specially dealt with in section 12. It would therefore be futile to search for an alibi in section 10 merely in order to support the plea that section 12 does not take within its fold the foreign exchange earnings relatable to transactions of completed sales. [988A E] 2.2 On a plain reading of section 10, the matter per taining to the foreign exchange earned by exports in the context of completed sales will not directly fall within the ambit of it. It will have to be strained beyond the point of endurance in order to accommodate this aspect. Section 10 is akin to a complementary provision which deals with preserva tion of foreign exchange which does not fall within a spe cific provision like section 12. What is more, if completed transactions are excluded from section 12, the purpose of the legislation will not be served, because sub section (6) of section 12 which has been designed to ensure compliance with the provisions made in section 12(1) to section 12 (5) cannot be availed of. In that event, in regard to the per sons who syphon off foreign exchange earned out of the transactions in the context of a completed sale or export on sale they cannot be dealt with under section 12(6) and no sanction to ensure compliance will be available. The Act will be thus rendered toothless to ensure compliance with evasion in the context of a completed sale. There is accord ingly no compulsions of law, logic, or philosophy to adopt such a view. [988F; 9B?A B] R. Venkata Subba & Ors. vs The Director of Enforcement, Enforcement Directorate, New Delhi & Anr., ILR Vol. 3 Mad. , approved.

CIVIL APPEAL No. 1324 of 1987. From the Judgment and order dated 15.4.1987 of the Karnataka High Court in C.R.P. No. 3030 of 1985. R.B. Datar and Ranjit Kumar for the Appellant. B. Krishna Prasad and K.R. Nagaraja for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave is directed against the order made by a learned Single Judge of the Karnataka High Court in exercise of revisional jurisdiction. The High Court relied upon the ratio of its Full Bench decision in M.M. Yaragatti vs Vasant, ILR and dismissed the revision petition as not maintainable. The short question for consideration in this appeal is as to whether a revision application is maintainable under section 115 of the Code of Civil Procedure read with section 50(1) of the Karnataka Rent Control Act, 1961 when a District Judge has made an order in his revisional jurisdiction under section 50(2) of the Act. This very question had come up for consideration before a Full Bench of the 343 Karnataka High Court in the case of Krishnaji Venkatesh Shirodkar vs Gurupad Shivram Kavalekar & Ors., ILR Venkataramiah, J., as he then was, speaking for the Full Bench held: "The second for consideration is whether the declaration made in section 50(2) that the order of the District Judge shall be final takes away the jurisdiction of this Court to exercise its powers of revision under section 115 CPC. A doubt about the above question arose in view of some observations made by a Division Bench of this Court in Diwakar Hegde vs Karkala Taluk Agriculture Produce Cooperative Marketing Society Ltd., to the effect that when a statute declares that the decision of an authority shall be final, it cannot be questioned either in appeal or revision under the statute. The doubt however stands resolved by the decision of the Supreme Court in Chhagan Lal vs The Municipal Corporation, Indore, [ ; In that case section 149 of the Madhya Pradesh Municipal Corporation Act, 1956 which provided that the decision of the district court in an appeal filed against an order of the Municipal Commissioner was final came up for consideration. Rejecting the contention that the said provision debarred the revisional jurisdiction of the High Court under section 115 CPC over the order of the district court passed in appeal, the Supreme Court observed 'The second contention is based on section 149 of the Madhya Pradesh Municipal Corporation Act, 1956. It provides that an appeal shall lie from the decision of the Municipal Commissioner to the district court when any dispute arises as to the liability of any land or building to assessment. Sub section (i) of section 149 provides that the decision of the district court shall be final. It was submitted that the decision of the district court was therefore final and that the High Court was in error in entertaining a revision petition. This plea cannot be accepted for, under section 115 of the CPC the High Court has got power to revise the order passed by courts subordinate to it. It cannot be disputed that the district court is a subordinate court and is liable to the revisional jurisdiction of the High Court . . ' " 344 The Full Bench also relied upon a brief decision of this Court in Krisnadas Bhatija vs A.S. Venkatachala Shetty (dead) by Lrs., (Special Leave Petition No. 913 of 1978 dated 13th of February, 1978) where referring to the very provision, this Court observed: "The petitioner contends that the order of the High Court. is without jurisdiction because under section 50 of the Karnataka Rent Control Act, 1961, a revision does not lie to the High Court. We do not agree. Section 115 CPC gives powers to the High Court to revise any order from the district court, subject of course to the limitations set out therein. The narrow point then is as to whether the District Judge can be equated with a district court. The High Court, following its own earlier decisions, has held so. We agree that in the scheme of Karnataka Rent Control Act, the District Judge and the district court are interchangeable expressions and nothing turns on the mere fact that the section uses the expression 'District Judge '. Section 115 CPC therefore applies and the revisional jurisdiction is vested in the High Court. " The Full Bench thereafter stated: "In view of the above decision of the Supreme Court it has to be held that the fact that the order of the District Judge under section SO(2) is made final, does not affect the jurisdiction of this Court under section 115 of the CPC to revise the orders of the District Judge made under section SO(2) in the absence of any express words in the statute taking away such jurisdiction. " As we have mentioned earlier the learned Single Judge has relied upon a later Full Bench decision of the High Court in the case of M.M. Yaragatti (supra). Two questions had been referred to the Full Bench for opinion, namely: (I) Whether a revision under section 115 of the Code of Civil Procedure lies to the High Court from a revisional order made by a District Judge under sub section (2) of section SO of the Karnataka Rent Control Act, 1967, as substituted by Karnataka Act 3 1 of 1975? and (2) Whether the ruling of the Full Bench of that Court in Krishnaji Venkatesh Shirodkar vs Gurupad Shivaram Kavelekar, (supra) requires reconsideration in view of the ruling of the 345 Supreme Court in Vishesh Kumar vs Shanti Prasad?, ; The learned Chief Justice of the High Court who spoke for the Full Bench noticed the decision in Krishnaji 's case as also the view expressed by this Court while disposing of the special leave petition and stated: If the matter had rested here, there would not have been any controversy, but after the decision of the Full Bench in Krishnaji Venkatesh Shirodkar 's case, two decisions of the Supreme Court have been rendered, i.e., one in Vishesh Kumar 's case and the other in Aundal Ammal vs Sadasivan Pillai, ; It was on the basis of the judgment of the Supreme Court in Vishesh Kumar 's case that the questions posed by the Division Bench had to be referred for decision to a larger Bench. After the reference, the latest judgment of the Supreme Court in Aundal Ammal 's case has also been rendered. It is in the wake of these two judgments that we are required to decide whether the law laid down in Krishnaji Venkatesh Shirodkar 's case still survives" The Full Bench on the authority of those two decisions came to the conclusion that the decision in Krishnaji Venkatesh Shirodkar 's case (supra) did not survive and a second revision to the High Court was not maintainable. A two Judge Bench of this Court in Vishesh Kumar 's case was considering whether the High Court possessed revisional jurisdiction under Section 115 of the Code of Civil Procedure in respect of an order of the District Court under Section 115 disposing of a revision petition and whether the High Court possessed revisional jurisdiction under Section 115 against an order of District Court under Section 25 of the Provincial Small Cause Courts Act as amended by the Uttar Pradesh Amendment Act 1978. The amendment shows that the District Court had also revisional jurisdiction under Section 115 and the revisional jurisdiction under that Section was shared between the High Court and the District Court by providing that the High Court has exclusive revisional jurisdiction in cases arising out of original suits or other proceedings of the value of Rs.20,000 and above and the District Court alone had such jurisdiction in any other case. This Court after discussing this provision and some authorities of the Allahabad High Court 346 reached the conclusion that the High Court was not vested with revisional jurisdiction under Section 115 of the Code of Civil Procedure in respect of a revisional order may by the District Court under that Section. This conclusion was obviously reached and in our view very rightly on account of the fact that the power under Section 115 of the Code had clearly indicated the revisional jurisdiction of the District Court and the High Court and vested that jurisdiction exclusively in either the District Court or the High Court depending upon the pecuniary valuation of the dispute. This Court then proceeded in Vishesh Kumar 's case to examine the second question. Section 25 of the Provincial Small Cause Courts Act vested revisional jurisdiction in the High Court and that provision was amended in its application of Uttar Pradesh from time to time. By amendment it vested revisional jurisdiction in the District Judge and by a later amendment provided that in relation to any case decided by a District Judge or Additional District Judge exercising jurisdiction of a Judge of Small Causes, the power of revision under Section 25 would vest in the High Court. In that case the District Judge had exercised revisional power under Section 25 and the question arose as to whether the High Court could entertain a further revision under Section 115 of the Code of Civil Procedure. This Court took the view by analysing Section 25 of the Provincial Small Cause Courts Act that it was a self contained Code and Section 25 provided the whole revisional jurisdiction and, therefore, the question of invoking the revisional jurisdiction under Section 115 of the Code of Civil Procedure did not at all arise. The answer to the second question was in the negative. The two conclusions reached in Vishesh Kumar 's case on the facts thereof were certainly correct but we are concerned with a different set of facts and law. The ratio of the decision in Vishesh Kumar 's case is not directly applicable to the present facts. The other case of this Court upon which reliance has been placed by the Full Bench is that of Aundal Ammal vs Sadasivan Pillai, (supra). A two Judge Bench in that case was considering the tenability of a second revision under Section 115 of the Code of Civil Procedure by the High Court in view of the provision of Section 20 of the Kerala Buildings (Lease and Rent Control) Act (2 of 1965). That Section provides: "(1) In cases where the appellate authority empowered 347 under Section 18 is a Subordinate Judge, 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 in reference thereto as it thinks fit . . " With reference to that provision a Full Bench of the Kerala High Court had held that a second revision lay. This Court stated in its judgment: "It was contended by Shri Poti, learned counsel for the appellant, that no revision lay to the High Court. He submitted that Section 185 read with Section 20 of the Act has completely ousted the High Court 's jurisdiction to interfere in this matter under Section 115 of the Code of Civil Procedure" That contention was examined by this Court. It may be relevant to briefly refer Section 18 which provided for appeal against the order of the Rent Control Court. Sub section (5) thereof provides: "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." In construing the meaning and effect of the word final, reliance was placed on the judgment of this Court in South Asia Industries Private Ltd. vs S.B. Sarup Singh & Ors., In that case the question arose as to whether in view of the provision in Section 43 of the Delhi Rent Control Act attaching finality to the judgment in Second Appeal by the High Court, a Letters Patent Appeal could be entertained. Several authorities were referred to and the conclusion in National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., []953] SCR 1028 was approved. Relying upon that decision as also the decision in Vishesh Kumar 's case, this Court held that jurisdiction of the High Court under Section 115 of the Code of Civil Procedure was excluded. On the analysis presented above, the two cases upon which the Full Bench has placed reliance are really not direct authorities on the 348 point. We have already noticed that in Krishnaji`s case the earlier Full A Bench had re1ied upon the decision of this Court in Chhagan Lal 's case. A three Judge Bench in that case broadly dealt with a similar contention as arising here. At page 875 of the Reports it is stated that: "The second contention is based on Section 149 of the Madhya Pradesh Municipal Corporation Act, 1956. It provides that any appeal shall lie from the decision of the Municipal Commissioner to the District Court, when any dispute arises as to the liability of any land or building to assessment. Sub section (1) of Section 149 provides that the decision of the District Court shall be final. It was submitted that the decision of the District Court was there fore final and that the High Court was in error in entertain in a Revision Petition. This plea cannot be accepted for, under Section 115 of the Civil Procedure Code the High Court has got a power to revise the order passed by courts subordinate to it. It cannot be disputed that the District Court is a subordinate court and is liable to the revisional jurisdiction of the High Court . " It is this observation in that judgment which had been followed in Krishnaji 's case. We may point that the judgment of the Full Bench in Krishnaji 's case was delivered by our learned Brother Venkataramiah, J. as a member of the Full Bench then and incidentally he was one of the members of the two Judge Bench in Aundal Ammal 's case where a contrary view has been taken. If this Court really intended to reverse the effect of the Full Bench decision in Krishnaji 's case to which our learned Brother was a party, one would have expected reference to Chhagan Lal as also Krishnaji. As against the two authorities of this Court, namely, the cases of Vishesh Kumar and Aundal Ammal dealing with provisions of different statutes, there is a direct decision of this Court in the case of Krishnadas Bhatija which has already been quoted. This Court was dealing with the very provision after its amendment in 1975 and the very question which now falls for consideration was before this Court. In Krishnaji 's case the decision of this Court had been relied upon as a binding authority and it was concluded that the High Court has powers to entertain a revision under Section 115 of the Code of Civil Procedure against the revisional order of a District Court. It is conceded that the impugned provision which was being considered by this Court in Krishnadas Bhatija 's case continues to be the same. Though the deci 349 sion rendered in Bhatija 's case (supra) by this Court is not a detailed one, the conclusion on the point is clear and admits of no ambiguity. The Full Bench in the impugned judgment clearly went wrong in holding that the two Judge Bench of this Court referred to by it had brought about a total change in the position and on the basis of those two judgments. Krishnaji 's case would be no more good law. The decision of a Full Bench consisting of three Judges rendered in Krishnaji 's case was binding on a bench of equal strength unless that decision had directly been overruled by this Court or by necessary implication became unsustainable. Admittedly there is no overruling of Krishnaji 's decision by this Court and on the analysis indicated above it cannot also be said that by necessary implication the ratio therein supported by the direct authority of this Court stood superseded. Judicial propriety warrarants that decisions of this Court must be taken as wholly binding on the High Courts. That is the necessary outcome of the tier system. We may briefly refer to the observations of the Lord Chancellor in Broom vs Cassell & Co., ; where the Lord Chancellor administered a warning by saying: "I hope it will never be necessary to say so again, that in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers". This has been approved by this Court on more than one occasion. Added to the above is the provision of Article 141 of the Constitution which unequivocally states that the law declared by this Court shall be binding on all courts within the territory of India. In the facts and circumstances of the case, the High Court should not have taken into itself, the responsibility of saying that its earlier Full Bench judgment based upon a decision of this Court in the circumstances indicated above had lost its binding authority in view of two other judgments rendered in different situations and setting. We are really not in a position to appreciate the manner in which a coordinate Bench of the High Court has chosen to overrule an earlier judgment of that Court. On the view we have taken, it must follow that we too are bound by the decision taken by this Court in Krishnadas Bhatija 's case. Krishnaji 's case was rendered under the Karnataka Rent control (Amendment) Act, 1975 and has held the field for over a decade. No justification has been pointed out by the High Court why that should be discarded. It is one of the essential requirements of the administration of justice that judgments rendered by superior courts and particularly with the approval of the apex court should not be frequently changed so as to unsettle settled positions. The fact that the State Legislature 350 has not thought it necessary to amend the law and set at naught Krishnaji or Bhatija is indicative of the position that this Court had not taken a wrong view of the legislative intention. In these circumstance we feel advised not to enter into an analysis of the provisions of the Act for a fresh look at the matter and prefer to follow Bhatija. We make it clear that we have not felt it necessary to examine whether the ratio of Aundal Ammal is binding or requires reconsideration in the presence of Bhatija in the field as a direct authority. For the reasons we have indicated above, we allow the appeal, set aside the judgment of the Karnataka High Court and declare that the earlier Full Bench decision in Krishnaji 's case holds the field. This appeal became necessary on account of the wrong view taken by the High Court. We do nat think it is proper to saddle the respondent with costs of the appeal. P.S.S. Appeal allowed.

Sub section (1) of section SO of the Karnataka Rent Control Act, 1961 confers revisional jurisdiction on the High Court in respect of orders passed or proceedings taken by the Court of Small Causes or the Court of Civil Judge under the Act while sub section (2) empowers the District Judge to revise the orders passed or proceedings taken by the Court of Munsif and makes his order final. A Full Bench of the Karnataka High Court in Krishnaji Venkatesh Shriodkar vs Gurupad Shivaram Kavalekar & ORS. , (ILR , following the decisions of this Court in Chhagan Lal vs The Municipal Corporation. Indore, ; and Krishnadas Bhatija vs A.S. Venkatachala Shetty, (SLP No. 913 of 1978 decided on 13th Feb., 1978) held that the fact that the order of the District Judge under section SO(2) of the Karnataka Rent Control Act, 1961 is made final, does not affect the jurisdiction of the High Court under section 115 of the Code of Civil Procedure to revise such orders of the District Judge, in the absence of any express words in the statute taking away such jurisdiction. Later this Court, in Vishesh Kumar vs Shanti Prasad, ; while interpreting section 25 of the Provincial Small Causes Courts Act, as amended by the U.P. Amendment Act, 1978, under which the revisional jurisdiction was shared between the District Court and the High Court, took the view that the High Court was not vested with revisional jurisdiction under section 115 CPC in respect of a revisional order made by the District Court under that section. A similar view was also 341 taken in Aundal Ammal vs Sadasivan Pillai, ; while construing section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 . Relying on the aforesaid two decision a Full Bench of the High Court of Karnataka in M.M. Yaragatti vs Vasant, (ILR took a contrary view to Krishnaji 's case. The appellant 's revision petition having been dismissed by a Single Judge of the High Court following the Full Bench decision in Yaragatti 's case, he preferred an appeal to this Court by special leave. Allowing the appeal, ^ HELD: 1. A revision application is maintainable under section 115 of the Code of Civil Procedure read with section 50(1) of the Karnataka Rent Control Act, 1961 when a District Judge has made an order in his revisional jurisdiction under section 50(2) of the Act. Chhagan Lal vs The Municipal Corporation, Indore, ; and Krishnadas Bhatija vs A.S. Venkatachala Shetty, (S.L.P. No. 913 of 1978 decided on 13th of February, 1978, referred to. Vishesh Kumar vs Shanti Prasad, ; ; Aundal Ammal vs Sadasivan Pillai, ; ; South Asia Industries Private Ltd. vs S.B. Sarup Singh & ors. J and National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., ; distinguished. Krishnaji Venkatesh Shirodkar vs Gurupad Shivaram Kavalekar & ors. ILR approved. M.M. Yaragatti vs Vasant, ILR overruled. The decision of a Full Bench of the High Court consisting of three Judges rendered in Krishnaji 's Case was binding on a bench of equal strength unless that decision had directly been overruled by this Court or by necessary implication became unsustainable. There is no such overruling of Krishnaji 's decision by this Court. It cannot also be said that by necessary implication the ratio therein supported by the direct authority of this Court stood superseded. [349B C] 3. Judicial propriety warrants that decisions of the Supreme 342 Court must be taken wholly binding on the High Courts. That is the necessary outcome of the tier system. Article 141 of the Costitution unequivocally states that the law declared by this Court shall be binding on all courts within the territory of India. A coordinate Bench of the High Court, therefore, should not have chosen to overrule an earlier judgment of that Court based upon a decision of this Court.[349C F] Broom vs Cassell & Co., [19721 1 AER 801, referred to. It is one of the essential requirements of the administration of justice that judgments rendered by superior courts and particularly with the approval of the apex court should not be frequently changed so as to unsettle settled positions. The fact that the State Legislature has not thought it necessary to amend the law and set at naught the decisions in Krishnaji 's case or Bhatija 's case is indicative or the position that this Court had not taken a wrong view of the legislative intention [349H: 350A]

Civil Appeal No. 1436 of 1975. Appeal by special leave from the Judgment and order dated 10 3 1975 of the Rajasthan High Court in D. B. Civil Writ Petition No. 384 of 1968. Ahmed Bux, Beni Madhav Sharma, M/s. V.J. Francis & R.A. Gupta, Advocates for the appellants. S.M. Jain & Sushil Kumar Jain, Advocates for respondent No. 1. The Judgment of the Court was delivered by JASWANT SINGH,J. This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No. 384 of 1968. The facts leading to this appeal are: On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector, Baran, against Birdhi Lal, respondent No. 1, for possession of land comprised in khasra Nos. 513, 669 and 678 situate in village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). By his judgment dated December 24, 1962, the 589 Assistant Collector dismissed the suit. The appellant thereupon preferred an appeal to the Revenue Appellate Authority who allowed the same by his judgment dated November 9, 1963, and reversing the judgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser. Aggrieved by the judgment and decree of the Revenue Appellate Authority, Birdhi Lal took the matter in further appeal to the Board of Revenue, Rajasthan, but remained unsuccessful as the members of the Board affirmed the view taken by the Revenue Appellate Authority. Dissatisfied with the decisions of the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Court of Rajasthan by means of a petition under Article 226 of the Constitution. The High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 5(43) of the Act and not a trespasser as conceived by section 5(44) of the Act, was not liable to be ejected from the land. Dissatisfied with this judgment, Kishori Lal has come up this Court. The learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well established principles of law, the impugned judgment cannot be sustained. Elaborating his submission, the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Revenue had concurrently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record, the High Court was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue. The contention advanced on behalf of the appellant is, in our opinion, wholly untenable. The expression 'trespasser ' is defined in section 5(44) of the Act as follows: "5(44). Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him". The above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him. In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him. The only point that we are, therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority. The material on the record does not at all establish any of these elements. On the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit A 3 and Pantinama, Exhibit A 4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High 590 Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue. It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (exhibit A 4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act. Reference to section 180 of the Act shows that it applies only to suits for "ejectment of Khudkasht or Ghair Khatedar tenants or sub tenants". Khudkasht is defined in section 5, sub section 23 as land "cultivated personally by an estate holder". It also includes "land recorded as Khudkasht, sir, havala, niji jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law". Similarly, the components of rights to sub tenancy and gair khatedari tenancies are also determined by the provisions of the Act. The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid, his claim was not upheld under section 180 so that the suit was decreed as one under section 183". In other words, findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us. It required necessary averments and proof of facts which were absent in the case. It was, therefore, a completely hopeless plea which we cannot entertain at this stage. For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs. M.R. Appeal dismissed.

The appellant brought a suit for possession of land against respondent Birdhi Lal, under Ss. 180 and 183 of the Rajasthan Tenancy Act, 1955. The Assistant Collector, Baran, dismissed the suit, but the Revenue Appellate Authority allowed his appeal and held that Birdhi Lal was a trespasser. A further appeal by Birdhi Lal was dismissed by the Board of Revenue, Rajasthan. Thereafter, his application made under article 226 was allowed by the High Court. The High Court held Birdhi Lal to be a tenant within the meaning of section 5(43), and not a trespasser as conceived by section 5(44). On appeal by special leave, the appellants contended before this Court that the High Court was not justified in exercising appellate jurisdiction and interfering with the concurrent opinions of the Revenue authorities. It was further contended that even if Birdhi Lal was held to be a tenant. he was liable to be ejected, as the original suit had been framed alternatively under section 180 of the Act. Dismissing the appeal, the court ^ HELD: (1) The material on record does not establish that Birdhi Lal took or retained possession of the land without authority. The essential conditions for holding Birdhi Lal to be a trespasser under section 5(44) were manifestly not satisfied. The High Court was right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue. [589F H & 590A] (2) The alternative case under section 180 required necessary averments and proof of facts which were absent in the case. The plea therefore, cannot be entertained. [590 C D]

iminal Appeal No. 32 of 1982. From the Judgment and Order dated 1.10.1981 of the Delhi High Court in Criminal Misc. (Main) No. 304 of 1980. S.L. Chowdhary and Pradeep Misra for the Appellant. Rakesh K. Khanna and R.P. Singh for the Respondent. The following order of the Court is delivered: Even though the dispute between the parties came to this Court from an initial order passed under Section 145 of the Code of Criminal Procedure, this Court realising that the dispute was between close relatives in respect of their interests in certain properties which were also the subject matter in a Civil Suit No. 434/78 (Remand) of the Court of Sub Judge, First Class, Delhi, advised the parties to have the same resolved through an Arbitrator. On the parties agreeing, this Court passed an order on September 5, 1986 recording the agreement to refer the dispute to arbitration and appointed Mr. Justice V.D. Misra, retired Chief Justice of the High Court of Himachal Pradesh, as the Sole Arbitrator. The parties had agreed to deposit a sum of Rs. 3,000 each with the Arbitrator to meet with his expenses and remuneration subject to further directions that may be made in that behalf. It was further directed that the learned Arbitrator will render a speaking award within four months. In view of the said agreement, the appeal was allowed and the High Court 's impugned order was set aside. It appears that thereafter one of the parties, namely, Jagdish Chander Bhatia, did not deposit the expenses with the Arbitrator and raised objection in regard to the arbitration proceedings on the plea that the property in dispute was proposed to be resumed by the Union of India. In the meantime, it appears that the sole Arbitrator passed away and in his place Mr. Justice M.S. Gujral retired Chief Justice of the High Court of Sikkim, was appointed the Sole Arbitrator. This Court did not approve of the conduct of Jagdish Chander Bhatia in not depositing the amount and 'in trying to avoid adjudication of the dispute through arbitration. After this 54 order was passed on October 12, 1990 by which a further sum of Rs. 8,000 was directed to be deposited with the Arbitrator, subject to the Arbitrator deciding who should bear the cost, the newly appointed Arbitrator entered upon the reference and submitted his award on November 14, 1991. This concluding part of his Award reads as under: "House No. 17 would entirely belong to Lachhman Das Bhatia whereas House No.18 would be jointly owned by Lachhman Das and Jagdish Chander. Lachhman Das would have 76.50% share whereas Jagdish Chander would have 23.50% share in House No.18. As House No.17 has entirely been given to Lachhman Das Bhatia in all fairness, Jagdish Chander Bhatia should give vacant possession of House No.17 to Lachhman Das Bhatia. " The parties were directed to bear their own costs of the arbitration proceedings except that Jagdish Chander Bhatia had to pay Rs. 4,000 to Lachhman Das Bhatia as his share of the Arbitrator 's fees which he had initially failed to deposit. Against this award, Jagdish Chander Bhatia (hereinafter called 'the objector ') has filed objections under Section 30 of the which provision reads as under: "An award shall not be set aside except on one or more of the following grounds, namely (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration proceedings have become invalid under Section 35; (c) that an award has been improperly procured or is otherwise invalid. " It was conceded by the learned counsel for the Objector that clause (b) would not be attracted. His main submission was that the Arbitrator had misconducted himself, in that, he did not take into consideration several documents which were placed on record before him which support the Objector 's case and hence the Award was invalid. He, therefore, partly relied on clauses (a) and (c) for setting aside the Award. 55 The documents to which the learned counsel for the objector invited our attention, are to be found in Vol.2 of the paper book placed before us. These documents are 31 in number and they mainly relate to the rights and interests of the parties in properties situate in that part which now belongs to the Dominion of Pakistan. Since they were refugees they had made certain claims under the law governing rehabilitation of displaced persons in respect of the properties left behind by them. These documents show that the claim was sanctioned in the name of Punnu Ram Lachhman Das in respect of the properties left behind by the family. On the strength of that claim, House No.18 was purchased in the said name. The Arbitrator, however, came to the conclusion, as is evident from the discussion from paragraph 26 and onwards of the Award, that the property in question was purchased for Rs. 12,850 from the funds contributed by Punnu Ram and Lachhman Das, the former paying Rs. 9,233 and the latter Rs. 3,617. This is the conclusion reached by the Arbitrator as is evident from paragraph 37 of the Award. The share of the Objector was held to be 1/7th in the share of Punnu Ram, since deceased. It was on this finding recorded by the Arbitrator that he passed the ultimate order extracted above. The arbitrator has made a speaking award setting out his reasons for the conclusions reached by him. He has thus complied with the direction of this Court given earlier. On a perusal of the award, it becomes clear that the Arbitrator did not go into the rights and interests of the parties including the HUF in the properties left behind in the Dominion of Pakistan. That was, in our opinion, not necessary because the fact that the claim was sanctioned in the name to the Punnu Ram Lachhman Das was never in dispute. The short question, which the Arbitrator was required to consider, was as regards the title of the properties which were the subject matter of the reference which included the property purchased for Rs. 12,850 on the strength of that claim. In dealing with that question the Arbitrator came to the conclusion that Punnu Ram and Lachhman Das had contributed the entire consideration of Rs. 12,850 and hence they were the owners of the property and on the death of Punnu Ram inheritance opened insofar as his share in the property was concerned and the Arbitrator came to the conclusion that the Objector was entitled to 1/7th out of the share of the deceased. Since the contribution made for payment of the price was not equal, the Arbitrator allotted a larger share to Punnu Ram and consequently the Objector has got a share on the basis thereof. Practically, all the documents included in Vol.2 relate to the interest of the 56 parties and their HUF in the properties left behind in the Dominion of Pakistan. The learned counsel for the Objector then tried to take us into the rights and interests of the parties in those properties, but we declined to go into the same as we thought that the Arbitrator was right that he was called upon to decide the interest of the parties in Houses Nos. 17 and 18 alone which were the subject matter of the reference. We are, therefore, of the opinion that the Arbitrator had not misconducted himself by refusing to enumerate those documents in Vol.2 in his award because he was bound by the scope of the reference which was limited to Houses Nos. 17 and 18 and not the properties left behind in the Dominion of Pakistan by the parties. For this reason, we are of the opinion that there is no infirmity on the face of the award which would entitle us to exercise jurisdiction under Section 30 of the . This Court pointed out in Food Corporation of India vs Joginderpal Mohinderpal & Anr., [1989] 2 SCC 347 that an award of an Arbitrator can only be interfered with or set aside or modified within the four comers of the procedure provided by the statute. The Court must find out whether the Arbitrator has misconducted himself or there was any infirmity in the procedure, such as, the Arbitrator having travelled beyond the terms of the reference or there being an error apparent on the face of the award. It is not misconduct on the part of an Arbitrator to come to an erroneous conclusion on a disputed issue. In case of error apparent on the face of the award, the award can be set aside only if there is any proposition of law on which the award is based which is in conflict with law. It must be demonstrated to the Court that the reasons given by the Arbitrator are so palpably erroneous in law that they have resulted in the Arbitrator taking a view which cannot be sustained in law. To put it differently the Court does not sit in appeal and does not re assess the evidence. Even if the Court feels that had it been left to it, it would have assessed the evidence differently that would not be a valid ground for setting aside the award. In Hind Builders vs Union of India, [1990] 3 SCC 338, this Court pointed out that where on an interpretation of any contract or document, two views are possible and the Arbitrator accepts one view while the other view is more appealing it would not be open to the Court to interfere with the Award. We, therefore, in the facts and circumstances of this case, see so reason to interfere with the award of the Arbitrator. The Suit No. 434/78 pending in the Court of the Sub Judge, Delhi 57 was disposed of by that Court, and an appeal, being Civil Appeal No. 211 of 1979 (Jagdish Chander Bhatia vs Lachhman Das Bhatia) preferred on April 23, 1979 against that decree, is pending in the Court of the District Judge, Delhi. We transfer that appeal to our file and make the Arbitrator 's award the rule of the Court. The decree of the trial court is set aside and a decree in terms of the award will be drawn up in the appeal proceedings arising out of Suit No. 434/78. We, however, do not make any order as to costs in the present proceedings. N.P.V. Appeal disposed of.

The dispute between the appellant and the respondent in respect of their Interests In certain properties, was referred to arbitration by this Court and a retired Chief Justice of a High Court was appointed as the sole Arbitrator with direction to make a speaking award, and the Arbitrator submitted his Award. Against this award the appellant objector filed objections under Section 30 of the , contending that the Arbitrator had misconducted himself in that he did not take into consideration several documents which were placed on record before him to support the objector 's case and, hence, the award was invalid under clauses (a) and (c) of Section 30. Disposing of the Appeal, this Court HELD : 1.1. There is no infirmity on the face of the award which would entitle this Court to exercise jurisdiction under Section 30 of the . The Arbitrator has made a speaking award setting out his reasons for the conclusions reached by him and has thus complied with the direction of this Court given earlier. [56D, 55E] 12. The documents in question mainly relate to the rights and interests of the parties In the properties situate in that part which now belongs to the Dominion of Pakistan. Since they were refugees they had made certain claims under the law governing rehabilitation of displaced persons in respect of the properties left behind by them. The claim was sanctioned in the joint same of the objector 's predecessor in Interest and the respondent in respect of the properties left behind by the family. On the strength of that 52 claim, one of the houses was purchased in the said name. The Arbitrator, however, came to the conclusion, that the property in question was purchased from the funds contributed by the objector 's predecessor in interest and the respondent. The share of the objector was held to be 1/7th in the share of the predecessor in interest, since deceased. Since the contribution made for payment of the price was not equal, the Arbitrator allotted a larger share to objector 's predecessor in interest and consequently, the objector has got a share on the basis thereof, when inheritance opened on the death of the predecessor in interest. [55B D.H, 56A] 1.3. It is clear from the award that the Arbitrator did not go into the rights and interests of the parties including the HUF in the properties left behind in the Dominion of Pakistan. That was not necessary because the fact that the claim was sanctioned in the joint name of the Objector 's predecessor in interest and the respondent was never in dispute. The short question, which the Arbitrator was required to consider, was as regards the title of the properties, which were the subject matter of the reference, which included a house purchased on the strength of that claim. It is not necessary for the Court to go into the question of the rights and interests of the parties in the properties left behind in the Dominion of Pakistan since the Arbitrator was right that he was called upon to decide the interest of the parties in respect of two houses alone, which were the subject matter of the reference. Therefore, the Arbitrator had not misconducted himself by refusing to enumerate all those documents in question in his award because he was bound by the scope of the reference which was limited to the two houses and not the properties left behind in the Dominion of Pakistan by the parties. [55F, 56B C] 2. In order to interfere with an award, the Court must rind out whether the Arbitrator has misconducted himself or there was any infirmity in the procedure, such as, the Arbitrator having travelled beyond the terms of the reference or there being an error apparent on the face of the award. It is not misconduct on the part of an Arbitrator to come to an erroneous conclusion on a disputed issue. The Court does not sit in appeal and does not reassess the evidence. Even if the Court feels that had it been left to it, it would have assessed the evidence differently that would not be a valid ground for setting aside the award. [56E, G] 3. Therefore, in the facts and circumstances of the case, there is no reason to interfere with the award, which is made the rule of the 53 Court. [56H, 57A B] Food Corporation of India vs Joginder pal Mohinderpal & Anr., [1989]2 S.C.C. 347 and Hind Builders vs Union of India, [1990] 3 S.C.C. 338, relied on.

ivil Appeal No. 479 of 1986. 578 From the Judgment and Order dated 18.3. 1985 of the Assam High Court in Civil Rule No. 139 of 1979. A.K. Ganguli, A. Mariarputham, A.D. Sikri and Dilip Tandon for the Appellant. Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal Singh, C.V.S. Rao, Adv. (NP) and R.B. Misra for the appearing respondents. Hardev Singh and section Ravindra Bhat for the intervenor. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave calls in question the judgment of the Guwahati High Court dated March 18, 1985, dismissing the appellant 's writ petition. The appellant is a resident of Tripura State. In his application in a representative capacity before the High court he main tained that he belonged to the Laskar community which had always been treated in the erstwhile State of Tripura as a Scheduled Tribe and on that basis in the State records was included in the Deshi Tripura community long before integra tion of the Ruler 's State of Tripura with the Union of India. Members of the Laskar community freely enjoyed all the benefits available to members of the Schedule Tribes until in 1976 the State Government decided to treat members of that community as not belonging to the Scheduled Tribes and issued instructions to the State authorities to imple ment the Government decision. That led to the filing of the petition before the High Court. In the writ petition appel lant prayed for appropriate directions to continue to treat the appellant and members of his community as belonging to the Scheduled Tribes and for a direction to the State Gov ernment to extend all the benefits admissible to members of the Scheduled Tribes to members of the Laskar community. Before the High Court the respondents disputed the claim and maintained that the Laskar community was never included in the Scheduled Tribes Order and as such there was no question of exclusion from the list. A historical study of the claim would show that in the past Tripura/Tripuri/Tippera which have been included in the Presidential Notification never included the Laskar community. Tripuras were. a TibetoDurman race akin to the Shan tribe and Tipperas were divided into four groups, namely, (i) Puran or original Tipperas; (ii) Jamatias; (iii) Noatias or Nutan Tripuras and (iv) Riangs. Respondents relied upon Government records and official publications in support of the aforesaid stand. 579 Before the High Court two circulars of the erstwhile State of Tripura, one being of December, 1930, and the other of February, 1941, as also the census report of the ex State of Tripura were produced in support of the claim advanced by the appellant. Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the High Court dismissed the writ petition but on the basis of a statement made by the Advocate General appearing for the State, it recorded: "We keep on record the statement made by the learned Advo cate General, Tripura, on instruction that as a result of the impugned Memorandum No. 18887 19077/TW/6 4(L D) dated 28.4. 1979 the certificates already issued would be treated as infructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such Scheduled Tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively insofar as the future benefits are concerned. " This appeal had come up for final hearing earlier and by a brief judgment reported in , a two Judge Bench recorded the following order: "The record before us shows that the people of the Laskar community have been treated as members of the Scheduled Tribes and there have been some letters from the Government of India to the State Government in support of that posi tion; it is, however, a fact that there has been no clear inclusion of the community in an appropriate Presidential Order. The appellant has maintained that even in the absence of such a clear specification in a Presidential Order, as a sub group under one of the notified categories, the appel lant 's community has been enjoying the privileges. We have been told by the learned counsel for the Union of India that the representation made by the appellant and members of his community for inclusion in the Presidential Order under Article 342 of the Constitution is being looked into and is being placed before the Parliamentary Committee in accord ance with the prescribed procedure for a review of the position. He has assured us that the Government of India will take steps to finalise the matter at an 580 early date and may in compliance with the procedure as prescribed, take a final decision. In case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available in law. " The appellant waited for some time and approached the Government of India for quick action but when nothing hap pened, an application for directions was made in this Court. Several adjournments were taken but Government could not take any decision. Ultimately, by consent of parties, the order disposing of the appeal was recalled and the appeal was directed to be set down for re hearing. That is how the appeal is now before us. Articles 341 and 342 of the Constitution deal with Scheduled Castes and Scheduled Tribes respectively and contain almost identical provision. We may extract Article 342 dealing with Scheduled Tribes: "342.(1) The President may, with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. (2) parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. " Article 366(25) defines 'Scheduled Tribes ' to mean such tribes or tribal communities or parts or groups within such tribal communities as are deemed under article 342 to be Sched uled Tribes for the purposes of this Constitution. The Constitution (Scheduled Tribes) (Union Territories) Order, 1950 relating to Tripura included 19 tribes within the notification. Items 15, 16, 17 and 18 are relevant for our purpose and they were: "15. Tripura or Tripuri, Tippera. 581 16. Jamatia 17. Noatia 18. Riang" Following the Reorganisation Act (37 of 1956), the Ministry of Home Affairs on October 29, 1956, notified the list of Scheduled Castes and Scheduled Tribes. In respect of the then Union Territory of Tripura the same communities were relisted. Then came the NorthEastern Area (Reorganisa tion) Act (81 of 1971) which in the Fourth Schedule con tained amendment to the Constitution (Scheduled Tribes) Order, 1950. Items 15 to 18 in the Scheduled contained the same descriptions. The Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, (108 of 1976) in relation to Tripura in the Second Scheduled carried the same in Entries 7, 14, 16 and 18. It is, therefore, clear that in Tripura the scheduled tribes within the meaning of the definition given in article 366 of the Constitution have been the following: 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera ' apart from 15 other tribes as specified. It is not necessary to refer to the 15 others inasmuch as it is the case of the appellant that Laskars are a part of the tribe named as Tripura, Tripuri or Tippera covered by Entry 18. Before adverting to the evidence upon which the appel lant relies in support of his stand, it is necessary that the scope of enquiry to be conducted in this regard by the Court may be determined. There are precedents of this Court which have to be first referred to. A Constitution Bench in the case of B. Basavalingappa vs D. Munichinnappa, ; examined the provisions of article 341 which contained similar provisions for the scheduled castes with reference to an election dispute. Wanchoo, J. spoke for the Constitu tion Bench thus: "Clause (1) provides that the President may with respect to any State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under article 341 after consultation with the Governor where it relates to 582 such castes in a State. Clause (2) then provides that Par liament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Par liament to modify the notification made by the President under cl. Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. Clearly therefore article 341 provides for a notification and for its finality except when altered by Parliament by law . . Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to any one to include any caste as coming within the notification on the basis of evidence Oral or documentary, if the caste in question does not find specific mention in the terms of the notification . . It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and there fore must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in Order. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order. " The factual dispute raised in the case before the Con stitution Bench was whether Voddar caste was included in Bhovi caste which was one of the notified castes. The Con stitution Bench dealt with the evidence and ultimately said: "In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out therefore which caste was meant by the word 'Bhovi ' as used in the Order. But for this fact it would not have been open to any party to 583 give evidence to the effect that caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies. " A similar dispute again came before a Constitution Bench in Bhaiyalal vs Harikishan Singh & Ors., ; with reference to a scheduled tribe in an election dispute. Gajendragadkar, CJ speaking for the Court said: "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examina tion of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well known that before a notification is issued under article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. " What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intend ed to be final. We may now refer to a two Judge Bench decision in the case of Parsram & Anr. vs Shivchand & Ors. , ; Here again, the Scheduled Castes Order was in issue in an election dispute and the question for consideration was whether mochi was included in the notified caste of chamar. The Court referred to both the Constitution Bench judgments and indicated: "These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes 584 to which reference was made at the Bar to find out whether Mochi and Chamar in some parts of the State at least meant the same caste although their might be some difference in the professions followed by their members, the main differ ence being that Chamars skin dead animals which Mochis do not. However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the scheduled caste of Chamars and be allowed to contest an election on that basis. " In Kishorilal Hans vs Raja Ram Singh & Ors., ; a two Judge Bench was called upon to decide whether jatav caste not mentioned in the scheduled castes of Datia district of Madhya Pradesh in the Order was included in chamar caste. The Court indicated: "If the matter were res integra we would have felt a good deal of difficulty in reconciling with the constitutional provisions the scheme followed in the state and the Orders concerned by which some caste has been includes in some districts of the same State and excluded in the other dis tricts. This Court, however, has in Bhaiyalal vs Harikishan Singh & Ors., supra, made observations repelling the conten tion that under article 341 of the Constitution the President was not authorised to limit the notification to parts of a State . . In Bhaiyalal 's case the appellant 's election had been challenged on the ground that he belonged to the Dohar caste which was not recognised as a scheduled caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer. It was held that the plea that though the appellant was not a Chamar as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is a sub caste of the Chamar caste could not be accepted. An enquiry of that kind would not be permissible having regard to the provisions contained in article 341 of the Constitution. " We may now refer to two separate judgments of this Court in the case Dina vs Narayan Singh, and Bhaiya Ram Munda vs 585 Anirudh Patar & Ors., ; Both were rendered by a common Bench of Shah (as he then was) and Bhargava, JJ. In the first case the question for consideration was inter pretation of Entry 12 in the Scheduled Tribes Order. The entry read. 'Gond including Mana '. The Court interpreted that Mana community was a substitute of Gond and on a proper construction of the entry Manas not being Gonds were not intended to be included. The decision in that case is not relevant for our purpose. In Bhaiya Ram 's case, the tribe specified in the Sched uled Tribes Order was Munda. The respondent was a Patar but he maintained that it was included in the notified tribe. The Bench was of the view that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to mean though evidence could not be accepted for modifying the order by including a new tribe. Since the respondents ' case was that Patars were Mundas, evidence could be given to show that the entry 'Munda ' included 'Patar '. These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order. The evidence in this case on which reliance has been placed in support of the claim that Laskars are included in the tribe described as 'Tripura/Tripuri/Tippera ' mainly consists of two circulars of the erstwhile State of Tripura. Circular No. 9 is of December, 1930. There is a narration therein to the following effect: "In this State Tripura Sampradaya means the following five communities ' 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" 586 In Circular No. 10 which is of the year 1941, it has been said: "In this State Tripura Kshatriya denotes the following classes: 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" The latter document related to census operation in the State. From these two documents it is clear that Deshi Tripura covered the Laskar class while there was another class called 'Tripura/Tripuri/ Tippera ' which did not relate to Laskar class. The Presidential Order has admitted the three tribes of Noatia, Jamatia and Riang in terms but while dealing with the two classes of Puratan Tripura and Deshi Tripura covering the Laskar class, it has adopted the de scription of those three terms without referring to Puratan or Deshi. The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential Order can only be by legislation. We do not think we should assume jurisdic tion and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but we consider it appropriate to commend to the authorities con cerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained. Reservation has become important in view of the increas ing competition in society and that probably had led to the anxiety of the appellant and the people in his community to claim reservation. As pointed out by the Constitution Bench judgments which we have referred to above, the basis on which inclusion into or exclusion from the enumerated list made under article 342 is contemplated is the changing econom ic, educational and other situations of the members of any 587 particular tribe. Keeping that in view the State Government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the author ities are satisfied that the claim is genuine and tenable, amendment may be undertaken as provided by the Constitution. This Court has indicated in some of the judgments re ferred to above that as a result of the detailed enquiry made as to the economic status, the level of education and the necessity of protection, inclusion into or exclusion from the Order is made. This material relating to the Laskar tribe in 1930 or 1941 may not have been considered suffi cient before the respective Orders were made for including the Laskars, said to have been covered by the description of Deshi Tripura. Therefore, even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a scheduled tribe. That is an additional feature which has weighed with us in taking our decision not to interfere in the matter. The claim of the appellant is dismissed so far as this Court is concerned but the observations which we have made may be kept in view. There shall be no order for costs through out. Y. Lal Appeal dismissed.

The appellant is a resident of Tripura State. He assert ed that he belonged to the Laskar community which was in cluded in State records in the Deshi Tripura community and in the former State of Tripura this community had always been treated as Scheduled Tribes, and the members of the community freely enjoyed all the benefits available to members of the Scheduled Tribes until 1976 when the State Government decided to treat members of this community as not belonging to the Scheduled Tribes and issued instructions to the state authorities to implement the Government decision. Being aggrieved the appellant filed a writ petition before the High Court in a representative capacity praying for appropriate directions directing the State Government to continue to treat the appellant and members of Laskar commu nity as belonging to Scheduled Tribes and extend all the benefits available to Scheduled Tribes to this community. In support of his claim the appellant relied upon the two circulars of the erstwhile State of Tripura dated December 1930 and February 1941 as also the census report of the ex state of Tripura, besides the authorities of this Court. The respondent took the plea that Laskar community was never included in the Scheduled Tribes Order and as such there was no question of excluding it from the List. After considering the rival contentions of the parties coupled with the his torical background bearing on the subject, the statement made by the Advocate General that the Memos will be given prospective operation, the High Court dismissed the Writ Petition. Hence this appeal by Special Leave. This appeal initially came up before a two judges Bench for final hear ing when on a statement made by the Counsel for the Union of India that a representation made by the appellant and mem bers of his community for inclusion their caste Laskar, in the Presidential order under Article 342 is being looked into and is being placed before the Parliamentary Committee for review of the position, the Court disposed of the appeal in terms of the assurance 577 given on behalf of the Union. It was specifically stated in the Court 's order that in case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available to him in law. Nothing having happened at governmental level, with the consent of the parties, the order disposing of the appeal was recalled and the appeal has thus now come up for hear ing. Dismissing the appeal, this Court, HELD: Reservation has become important in view of the increasing competition in society and that probably had led to the anxiety of the appellant and the people in his commu nity to claim reservation. [586G] In Tripura the Scheduled Tribes within the meaning of the definition given in Article 366 of the Constitution have been 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera ' apart from 15 other tribes. It is the case of the appellant that Laskars are a part of the tribe named as 'Tripura, Tripuri and Tippera ' covered by Entry 18. [581D] This Court should not assume jurisdiction and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but it is appropriate to commend to the authorities concerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained. [586F G] Even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a Scheduled Tribe. That is an additional feature which has weighed with us in taking our decision not to interfere in the matter. [587C] B. Basavalingappa vs D. Munichinnappa, ; Bhaiyalal vs Harikishan Singh and Ors., ; ; Parsram and Anr. vs Shivchand and Ors. , ; ; Kishorilal Hans vs Raja Ram Singh and Ors., ; ; Dina vs Narayan Singh, and Bhaiya Ram Munda vs Anirudh Patarand Ors., ; , referred to.

riminal Appeal No. 19 of 1955. Appeal by Special Leave from the Judgment and Order dated the llth May 1954 of the Patna High Court in Death Reference No. 8 of 1954 with Criminal Appeal No. 142 of 1954 arising out of the Judgment 571 and Order dated the 12th March 1954 in Sesssions Trial No. 2 of 1954. B. P. Maheshwari, for the appellant. M. M. Sinha, for the respondent. September 28. The appellant Deonandan Mishra (Deonandan Missir) who was a stenographer to the Inspecting Assistant Commissioner of Income tax , Patna, has been convicted under section 302 of the Indian Penal Code for having committed the murder of his second wife, Mst. Parbati Devi, on the night of the 3rd/4th September, 1953 and sentenced to transportation for life. The deceased was married to the appellant in or about the year 1941 and was his second wife. As appears from the subsequent events, she was considered to be a woman of loose morals. She appears to have been forsaken by her husband as also by her father in or about the year 1945 and to have sought shelter in the Anath Ashram at Gaya. Through the intervention of the Secretary of the Ashram and with the consent of both the husband and the father, she got re married to one Nand Lail of Punjab in December, 1945. After a stay of about an year and a half with Nand Lall in Punjab, she appears to have left him on account of alleged ill treatment. She came back to the Anath Ashram at Gaya in June, 1947, but left it again in October, 1947. What happened thereafter is not clear from the evidence and her whereabouts between October, 1947 and August, 1953, are not known and do not seem to have been traced, All that appears is that for some time prior to the date of the murder she was found going up and down in places near about Gaya and that particularly on the 2nd and 3rd September, 1953, i.e., two days prior to her murder she was found going between Gaya and Patna and a place Chakand in between these two places. Early morning at about 7 A.M. on the 4th September, 1953, P.W. 10, Havildar, found a naked dead body of a 572 female lying in the Kabristhan at the outskirts of Gaya about a mile and a half from the police thana. It was lying on the western verandah of the bungalow of the Kabristhan with a number of cut injuries on the neck and on other parts of the body. Report of this was carried to the police and the body was subsequently identified to be that of Parbati Devi, the second wife of the appellant, Investigation followed and the appellant was arrested on the 6th September, 1953, and put up for trial in due course. There is no eye witness to the murder and the case against the appellant depends entirely on circumstantial evidence. The standard of proof required to convict a person on such evidence is well established by a series of decisions of this Court, of which it is sufficient to mention Hanumant vs The State of Madhya Pradesh(1). This standard requires that the circumstances relied upon must be fully established and that the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The learned counsel for the appellant has, therefore, strenuously contended before us that the circumstances relied on have not been fully established and that in any case they are not enough to bring the offence home to the accused. The various circumstances relied upon have, therefore, to be briefly noticed. The appellant belongs to a place called Chakanddih about a mile and a half from a railway station called Chakand, which is in between Patna and Gaya and which is about five miles from Gaya. It is in evidence that the deceased woman was seen alighting at the Chakand railway station on the night of the 2nd September, 1953, at about 10 15 P.m. from a train proceeding from Gaya to Patna and that after so alighting she was found proceeding to the village Chakand dih. It is also in evidence that she took the train again early next morning at Chakand for Patna. The evidence further shows that on the 3rd morning at about 10 o 'clock, she presented herself at the (1) [1952] S.C.R. 1091. 573 Income tax office at Patna, and made enquiries about the appellant from a peon of the office, P.W. 12, and that the appellant was informed about this by him. On receiving this information the appellant came out and on seeing the woman told the peon that she was his wife and asked him to make some arrangement to keep her for the day so that he might meet her in the evening after he was free from the office work. The peon accordingly made arrangements for her stay till the evening in the quarters of the Chowkidar, P.W. 22, who lived in the compound of the office. In the evening of that day, i.e., 3rd September, at about 7 P.m. the appellant came to his quarters and took away this woman in a rickshaw. These facts are spoken to by the peon, P.W. 12, and the Chowkidar, P.W. 22. It is further in evidence that after midday on the 3rd September, 1953, the appellant filed an application for casual leave for one day, i.e., 4th September and that leave was granted. That the appellant did apply for leave and got it is not disputed. The next evidence against the appellant is that he was seen that night, travelling with the deceased Parbati Devi in a compartment of the train which left Patna at about 8 P.m. that night for Gaya. This evidence is that of three witnesses, P.W. 1, a daffadar and P. Ws. 3 and 4, two chowkidars, all of whom were on duty at Chakand railway station that night. All of them speak to their having seen the appellant along with the deceased woman in a third class compartment at about 11 or 11 30 P.m. that night in the train from Patna to Gaya when it stopped at Chakand railway station for a few minutes. It is their evidence that they knew both these persons well and that these persons did not get down at that station but proceeded in the train towards Gaya. This evidence, if accepted as it has been by both the courts below undoubtedly is a strong circumstance against the appellant inasmuch as it makes out that the appellant was last seen with the murdered woman a few hours before the time when the murder must have taken place. This evidence has been strongly challenged. The appellant admitted that the murdered 574 woman met him at his office at Patna in the first week of September, but his case before the Sessions Judge was that this was not on the 3rd but on the 2nd. In answer to questions under section 342, Criminal Procedure Code by the learned Sessions Judge, he admitted that the deceased came to the Income tax Office at Patna, to see him and that he met her there and that he made her stay in the house of the Chowkidar and that he took her from the lodging of the chowkidar in the evening on a rickshaw. But he maintained that all this happened on the 2nd and not on the 3rd and said that after taking her from the lodgings of the chowkidar, at Patna on a rickshaw, he got down at the crossing and gave her money and sent her away. He also added that once formerly she had come to his office to demand money. His case that be met the deceased woman at Patna on the 2nd and not on the 3rd was not accepted by both the courts below. Not only was there the evidence of the peon, P.W. 12, and the chowkidar, P.W. 22, in support of the prosecution case as to the date being the 3rd but a responsible and, educated person like the Inspector of Income tax, against whom nothing has been alleged, has also spoken to the same from his personal knowledge. It is also significant that the appellant when he was questioned under section 342, Criminal Procedure Code in the court of the Committing Magistrate did not specifically put forward his case that it was on the 2nd and not on the 3rd, that he met the woman at his office in Patna. His answer,% in that court were bare denials when he was asked whether he saw Parbati Devi at the Patna Incometax Office on the 3rd and whether he asked the chowkidar to allow her to remain in his house for the whole of the day. His present case that he met the deceased at Patna on the 2nd and not on the 3rd appears to be an afterthought. In the circumstances, the following facts, viz., that the appellant met the deceased at Patna Income tax Office on the 3rd, that he took charge of her that evening from the quarters of the chowkidar of the office by taking her in a rickshaw, that he was found travelling with her by 575 the night train at about 11 or 11 30 p.m. at the Chakand railway station and proceeding towards Gaya, must be taken to have been fully and clearly established, as found by both the courts below. , The next important circumstance alleged against him is the existence of a strong motive. That the relations between both of them were completely strained, and that the marital tie was virtually (though not legally) snapped, is admitted and is clearly borne out on the record by the Thyagpatra which he gave to the Secretary, Anath Ashram, in 1945 authorising him to get her married to an ' other person. It is also admitted that the appellant had married a third wife some time before this murder. The suggestion for the prosecution is that in, all these circumstances and having regard to the bad reputation which this woman had gathered round her, as the evidence clearly shows, and in view of the fact that she started troubling him by visits at his office, the appellant had a strong motive to commit the, murder. It is urged for the defence that this woman must have had a number of persons with whom she must have been carrying on love intrigues and that she must have provoked strong jealousies of various persons in and around the place where she was admittedly moving for at least some time prior to her murder and that any one of such persons might have had much stronger motives to commit the crime. Now, while it is perfectly true that there is no clear evidence about the life and movements of this woman from about October, 1947 to August, 1953, there can be no doubt that on the material before the Court, the existence of a strong motive on the part of the appellant is clearly indicated. As has been already stated this woman left the appellant in the year 1945 and took shelter in the Anath Ashram, Gaya. exhibit 2 (a), a Thyagpatra executed by the appellant on the 12th October., 1945, shows that he purported to give up all rights over this woman as a husband and authorised the Ashram to arrange to get her married according to her choice. Simultaneously with this Thyagpatra, he also sent a letter to the Secretary, 73 576 Anath Ashram, exhibit 2 A(1), which is as follows: "It is submitted that I have duly filled the tyagpatra (divorce form) in connection with my wife Parbati Devi and submitted the same to the Ashram. Besides this, I pray to the Ashram Samiti and the Bibah Samiti, with my folded hands that they should keep in mind to get Parbati Devi married at a very distant place in any other State, because she is Woman of such a loose character that if she is married to a place near about it will bring ill fame to the Ashram and to me. As I am an employee in the Police department, it shall adversely affect my service. I pray you not to refuse my prayer". The state of mind of the appellant as disclosed in this letter furnishes a clue as to how his mind would have reacted when in spite of her having been married away at a distant place, she came back and was virtually knocking about from place to place between Patna and Gaya and went so far as to meet him in the very office where he was working to demand money. It is strongly urged that this letter only shows the state of his mind about eight years prior to the murder. But in view of his own admission that she started troubling him again by visiting him at his office, and demanding money at least on two occasions including that on the 3rd September, the courts below were perfectly justified in considering that a strong present motive on the part of the appellant has been made out. Learned counsel for the appellant urges that the existence of the motive and the evidence as to the appellant having been last seen travelling in the train with this woman on the night of the 3rd September a few hours prior to the time of the murder, even if believed are, at best circumstances which may create a strong suspicion but that they are not enough by themselves to make out the guilt of the accused. It s pointed out that there is no evidence that the ap pellant and the deceased woman were found getting down at the Gaya station or that they were both fond proceeding towards Kabristhan after so getting down. Undoubtedly there is some gap in the evidence 577 at this point. But their getting down at Gaya or proceeding towards Kabristhan must have taken place at or after midnight. It is in evidence that Kabristhan was on the out skirts of Gaya about a mile and a half from the Gaya police station, on the bank of the river Phalgu and that there was no human habitation within about 100 yards of the place. The absence of any specific evidence, therefore, as to the appellant having been seen with the murdered woman going towards Kabristhan or near about Kabristban is intelligible. It cannot be denied, however, that if the circumstances against the appellant stopped short at this point, there may be room for hesitation. There are however further circumstances relied upon by the courts below and they require to be noticed and considered. These further circumstances are (1) the finding of a blood stained knife (pen knife) near the dead body, and (2) the existence of certain injuries upon the person of the appellant when he was arrested on the 6th. The evidence of P.W. 23, the officer in charge of Kotwali police station, Gaya, who proceeded to investigate this offence on getting information thereof at 7 A.M. on the 4th September shows that he then found the dead body of the woman, in a pool of blood underneath and near the neck, and that there was found at the time a blood stained knife near the head. This knife was seized and marked as exhibit 1. The prosecution has given evidence of three witnesses, P.Ws. 11) 13 and 18, who are respectively the Daftari, the Chaprasi and the Inspector attach to the Income tax Office, Patna, in which the appellant was working, that they had seen with the appellant a knife similar to the one which was shown to them in Court, as having been found by the side of the dead body. Out of these P. W. 18, the Income tax Inspector says in cross examination that he had never seen such a knife "before". The appellant, while in his examination under section 342, Criminal Procedure Code admitted that he used to keep a knife for mending pencil, denied that the knife, produced in court as being the one which was found by the side of the dead body, was 578 his or was like the one he kept. It was strongly urged on behalf of the defence that there was no proof that this was the very knife which the appellant used to have. The learned Judges of the High Court met this criticism as follows: " 'Of course no witness could have possibly deposed that this was the knife which was in possession of the appellant. They say that the knife which they had seen with the appellant prior to the occurrence was a knife similar to the one which was found in a blood stained condition near the dead body. We have examined that knife for ourselves and it has a peculiarity of its own. The knife has an ivory handle. It has a cork screw and a bottle opener all combined. A knife of this description, therefore, can be identified and it is not one of the kind which can be said to be an ordinary one". In view of the above observation by the learned Judges and having regard to the evidence of P.W. 18, who, though he did not speak of these peculiar features, has categorically said that be had never seen such a knife before, there is no reason to disagree with the finding of the High Court that the find of this knife near the dead body is a strong circumstance against the appellant. The next, circumstance found against the appellant is the presence of injuries on his body at the time of his arrest on the 6th. P.W. 24, a Civil Assistant Surgeon of Gaya who examined him at 6 P.m. on the 6th of September, found the following four simple injuries on his person. (1) One wound on the left ring finger, (2) one wound on the back of left hand near thumb, (3) two abrasions in front of right knee, and (4) one small abrasion in front of left knee. In his opinion, the injuries were all about three days old. Numbers 1 and 2 might have been caused by a sharpedged weapon such as a penknife and injuries 3 and 4 by some hard and rough substance such as friction against the ground. According to him. the nature and position of the injuries were such that "if the victim is lying on the ground and if the assailant is over on the chest of the victim and he is holding the victim 579 by his left hand and if he is inflicting, injuries near about his left hand the victim is struggling making the assailant unsteady, then injuries Nos. 1 and 2 may be caused by his own weapon and injuries Nos. 3 and 4 may be caused due to friction against the ground". This answer indicates the possibility of the injuries having been received by a person while making a murderous attack on the victim with a pen knife. The appellant when asked about these injuries in his examination under section 342, Criminal Procedure Code stated in the Sessions Court (as well as in the committal court) that he fell down at Jehanabad platform on the 3rd due to Dhoti getting entangled, and sustained injuries. In support of his explanation he relied on an application for extension of leave sent first by telegram on the morning of the 5th of September to the Commissioner of Income tax, Patna asking for extension of leave followed by a letter of that very date to the same effect. The letter was addressed to the Inspecting Assistant Commissioner of Income tax, Northern Range, Patna, and runs as follows: "I beg to state that I started from home from Patna in the night train of 3rd September 1953. When the train stopped at Jehanabad I wanted to come out of the train for taking a stand on the platform due to unbearable heat in the train. At the gate of the compartment as soon as I wanted to come out my one leg entangled with the lower part of my dhoti resulting instantaneous fell down from the train. Due to this accident I got injuries at both the knees and the cut marks in the back of my left palm. I therefore request you to kindly extend my leave up to 10th September, '53". When questioned under section 342, Criminal Procedure Code before the Sessions Court about the extension of his leave, he said "I was a stenographer. How can have I typed when my left hand was injured. Hence I wanted to extend the leave". It appears to us, however, very doubtful, having regard to the nature of the injuries, whether this can be the real reason for his extending the leave, He does not 580 say so specifically in his application for leave. Nor, does it appear so likely from the. medical evidence how injuries Nos. 1 and 2 could have been caused by the alleged fall on the railway platform. In the crossexamination of the Doctor it was suggested that if there is a broken glass piece lying on the ground and if during the fall the hand came in violent contact with that piece of glass, then such injuries may be caused. But the appellant in his explanation and in the application for leave does not say anything which indicates that he received the injuries on the band from a piece of glass. In this state of the evidence, it cannot be said that the courts below were not justified in coming to the conclusion which they did, viz., that the explanation of the appellant for the injuries was false and that the injuries may well have been received on the occasion of the murder. Summing up, the various facts, which formed the links in the chain of circumstantial evidence in this case, may be stated to be as follows: 1. There was a fairly strong motive for the ap pellantto commit the murder in question. He took charge of the murdered woman on the evening of the 3rd September by taking her out from the quarters of the chowkidar of the Incometax Office, Patna, and leaving the place with her in a rickshaw. 3.He was found travelling with her by a train which was proceeding to Gaya that night, at Chakand railway station and this was at about 11 or 11 30 P.M., i.e., a few hours prior to the time when she must have been murdered. 4.The knife, which looked like the one which he was known to be using in his office and which was not of a common pattern, was found just by the side of the head of the murdered woman stained with blood. 5.When he was arrested two and a half days after the murder, he bad simple injuries on his hand and the knees which might well have been received, according to the medical evidence, in an assault on the murdered woman with the knife above mentioned. 581 These circumstances taken together, advance the case against the appellant very much beyond suspicion and reasonably and definitely point to the appellant as the ' person who committed the murder. In such a situation the fact that he has no explanation to offer as to how, after having taken charge of this woman on the evening of the 3rd at Patna and after having travelled with her in the train that very night towards Gaya, he left the woman, where and how he parted company with her and what became of her so far as he knows, goes a long way against him. The fact that on the other hand he tries to dissociate himself from her company at the relevant time by putting forward for the first time in the Sessions Court, the story of having met her at Patna on the 2nd September and of his having parted company with her that evening at some crossing after giving her some money, which is patently false, is very significant. The further fact that the explanation for his injuries appears to be false is also significant. These false explanations are telling circumstances which, in a case depending on circumstantial evidence taken with the other facts such as those in this case, are enough to bring the guilt home to the accused. To combat this conclusion learned counsel for the appellant drew our attention to the nature and position of the injuries on the body of the deceased woman as disclosed by the medical evidence of the Doctor, P.W. 17, who conducted the postmortem examination, as also the various indications at the site of the Occurrence., as found and spoken to by the police officer, P. W. 23, who was the first officer to go to the scene by about 7 A.M. on the 4th on receiving information, He also drew our attention to the fact that according to the report of the Serologist and Chemical Examiner, no human blood appeared to have been found on the saree and the bodice found lying near about the place where the dead body was lying and that neither the saree nor the bodice showed any indication of having been torn or tampered with and that on the other hand the body was found lying absolutely naked with face upwards. These features 582 have all been pressed into service for a strong argument that the murder must have been the act of more than one person and probably having its source in sex jealousy. We have very closely and anxiously gone into this aspect of the matter by carefully scrutinising the entire evidence in this behalf. It is unnecessary to recapitulate the same. Whatever may have been. the actual situation on the spot and the method by which the murder was in fact committed a matter for mere speculation we are satisfied that the murder could have been committed by a single individual in the position of the appellant. Sitting in an appeal by way of special leave, we are not prepared to say that the medical evidence and other concomitant circumstances were such as to compel a conclusion contrary to that arrived at by the Courts below. It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an addi tional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence. I We find, therefore, no sufficient reason to differ from the view taken by the lower courts and this appeal must accordingly be dismissed.

The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of the Supreme Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion con sistent with the innocence of the accused. The appellant was convicted under section 302 of the Indian Penal Code and sentenced to transportation for life. There were no eyewitnesses to the murder and the conviction of the appellant rested solely on the circumstantial evidence which was relied on by the courts below. The various facts which formed the links in the chain of circumstantial evidence in the present case taken together advanced the case against the appellant very much beyond suspicion and reasonably and definitely pointed to the appellant as the person who committed the murder. In a case like the present when the various links in the chain had been satisfactorily made out and the circumstances pointed to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, and be offered no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completed the chain. Hanumant vs The State of Madhya Pradesh ([1952] S.C.R. 1091), referred to.

No. 491 of 1969. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. R.K. Garg, D. P. Singh, section C. Agrawala, R. K. Jain, V. J. Francis and section Chakravarti, for the petitioner. Niren De, Attorney General, Jagadish Swarup, Solicitor General, J. M. Mukhi, R. N. Sachthey and B. D. Sharma, for the respondents. The Judgment of the Court was delivered by Hidayatulla, C.J. This petition seeks a declaration against the Union of India and the Chairman Central Board of Film Censors, that the provisions of of the together with the rules prescribed by the Central Government, February 6, 1960, in the purported exercise of its powers under section 5 B of the Act are unconstitutional and void. As a consequence the petitioner asks for a writ of mandamus Or any other appropriate writ, direction or order quashing the direction contained in a letter (Annexure X) dated July 3, 1969 for deletion of certain shots from a documentary film entitled 'A Tale of Four Cities ' produced by him for unrestricted public exhibition. 449 The petitioner is a journalist, playwright and writer of short stories. He is also a producer and director of cinematograph films. He was a member of the Enquiry Committee on Film Censorship (1968) and is a member of the Children 's Film Committee. He has produced and/or directed many films some of which have been well received here and abroad and even won awards and prizes. The petitioner produced in 1968 a documentary film in 2 reels (running time 16 minutes) called a Tale of Four Cities. In this film he purported to contrast the luxurious life of the rich in the four cities of calcutta Bombay, Madras and Delhi, with the squalor and poverty of the poor, particularly those whose hands and labour help to build beautiful cities, factories and other industrial complexes. The film is in black and white and is silent except for a song which the labourers sing while doing work and some background music and sounds for stage effect. The film, in motion sequences or still shots, shows contrasting scenes of palatial buildings, hotels and factories evidence of the prosperity of a few, and shanties, huts and slums evidence of poverty of the masses. These scenes alternate and in between are other scenes showing sweating labourers working to build the former and those showing the squalid private life of these labourers. Some shots mix people riding in lush motor cars with rickshaw and handcart pullers of Calcutta and Madras. In one scene a fat and prosperous customer is shown riding a rickshaw which a decrepit man pulls, sweating and panting hard. In a contrasting, scene the same rickshaw puller is shown sitting in the rickshaw, pulled by his former customer. This scene is the epitomisation of the theme of the film and on view are the statutes of the leaders of Indian Freedom Movement looking impotently from their high pedestals in front of palatial buildings, on the poverty of the masses. On the bouleverds the rich drive past in limousines while the poor pull rickshaws or handcarts or stumble along. There is included also a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in which the red light district of Bombay is shown with the inmates of the brothels waiting at the doors or windows. Some of them wear abbreviated skirts showing bare legs up to the knees and sometimes a short way above them. This scene was perhaps shot from a moving car because the picture is unsteady on the screen and under exposed. Sometimes the inmates, becoming aware of the photographer, quickly withdraw themselves. The whole scene barely lasts a minute. Then we see one of the inmates shutting a window and afterwards we see the hands of a woman holding some currency notes and a male hand plucking away most of them leaving only a very few in the hands of the female. The two actors are not shown. 450 The suggestion in the first. scene is that a customer is being entertained behind closed shutters and in the next sequence that the amount received is being shared between the pimp and the prostitute, the former taking almost the whole of the money. The sequence continues and for the first time the woman who shut the window is again seen. She sits at the dressing table, combs her hair, glances at two love birds in a cage and looks around the room as if it were a cage. Then she goes behind a screen and emerges in other clothes and prepares for bed. She sleeps and dreams of her life before she took the present path. The film then passes on to its previous theme, of contrasts mentioned above, often repeating the earlier shots in juxtaposition as stills. There is nothing else in the film to be noticed either by us or by the public for which it is intended. The petitioner applied to the Board of Film Censors for a 'U ' certificate for unrestricted exhibition of the film. He received A. letter (December 30, 1969) by which the Regional Officer informed him that the Examining Committee and the Board had provisionally come to the conclusion that the film was not suitable for unrestricted public exhibition but was suitable for exhibition restricted to adults. He was given a chance to make representations against the tentative decision within 14 days. Later he was informed that the Revising Committee had reached the same conclusion. He represented by letter (February 18, 1969) explaining the purpose of the films as exposing the exploitation of man (or woman) by man ' and the contrast between the very rich few and the very poor masses. He claimed that there was no obscenity in the film. He was informed by a letter (February 26, 1969) that the Board did not see any reason to alter its decision and the petitioner could ' appeal within 30 days to the Central Government. The petitioner appealed the very next day. On July 3, 1969, the Central Government decided to give a 'U ' certificate provided the following cuts were made in the film: "Shorten the scene of woman in the red light district, deleting specially the shot showing the closing of the window by the lady, the suggestive shots of bare knees and the passing of the currency notes. " Dir. IC(iii)(b)(c); IV". The mystery of the code numbers at the end was explained by a letter on July 23, 1969 to mean this : "1. It is not desirable that a film shall be certified as suitable for public exhibition, either unrestricted or restricted to adults which 45 1 C(iii) (b) deals with the relations between the sexes in such a manner as to depict immoral traffic in women and soliciting, prostitution or procuration. IV.It is undesirable that a certificate for unrestricted public exhibition shall be granted in respect of a film depicting a story, or containing incidents unsuitable for young persons. " The petitioner then filed this petition claiming that his fundamental right of free speech and expression was denied by the order of the Central Government. He claimed a 'U ' certificate for the film as of right. Before the hearing commenced the film was specially screened for us. The lawyers of both sides (including the Attorney General) and the petitioner were also present. The case was then set down for hearing. The Solicitor General (who had not viewed the film) appeared at the hearing. We found it difficult to question him about the film and at our suggestion the Attorney General appeared but stated that Government had decided to grant a 'U ' certificate, to the film without the cuts previously ordered. The petitioner then asked to be allowed to amend the petition so as to be able to challenge pre, censorship itself as offensive to freedom of speech and expression and alternatively the provisions of the Act and the rules, orders and directions under the Act, as vague, arbitrary and indefinite. We allowed the application for amendment, for the petitioner was right in contending that a person who invests his capital in promoting or producing a film must have clear guidance in advance in the matter of censorship of films even if the law of pre censorship be not violative of the fundamental right. When the matter came up for hearing the petitioner raised four points : (a) that pre censorship itself cannot be tolerated under the freedom of speech and expression, (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action, (c) that there, must be a reasonable time limit fixed for the decision of the autho rities censoring the film, and (d) that the appeal should lie to a court or to an independent tribunal and not the Central Government. The Solicitor General conceded (c) and (d) and stated that Government would set on foot legislation to effectuate them at them earliest possible opportunity. Since the petitioner felt, satisfied with, this assurance we did not go into the matter. But we must place on record that the respondents exhibited charts showing the time taken in the censorship of films during the last one year or so and. 45 2 we were satisfied that except in very rare cases the time taken could not be said to be unreasonable. We express our satisfaction that the Central Government will cease to perform curial functions through one of its Secretaries in this sensitive field involving the fundamental right of speech and expression. Experts sitting as a Tribunal and deciding matters quasi judicially inspire more confidence than a Secretary and therefore it is better that the appeal should lie to a court or tribunal. This brings us to the remaining two questions. We take up first for consideration : whether pre censorship by itself offends the freedom of speech and expression. Article 19(1)(a) and (2) of the Constitution contain the guarantee of the night and the restraints that may be put upon that right by a law to be made by Parliament. They may be read here: "19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression; (2)Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. " The argument is that the freedom is absolute and precensorship is not permissible under the Constitution. It is submitted that precensorship is inconsistent with the right guaranteed. Now it is clear that some restraint is contemplated by the second clause and in the matter of censorship only two ways are open to Parliament to impose restrictions. One is to Jay down in advance the standards for the observance of film producers and then to test each film produced against those standards by a perview of the film. The other is to let the producer observe those standards and make the infraction an offence and punish a Producer who does not keep within the standards. The petitioner claims that the former offends 453 the guaranteed freedom but reluctantly concedes the latter and relies upon the minority view expressed in the United States Supreme Court from time to time. The petitioner reinforces this argument by contending that there are other forms of speech and expression besides the films and none of them is subject to any prior restraint in the form of precensorship and claims equality of treatment with such other forms. He claims that there is no justification for a differential treatment. He contends next that even the standards laid down are unconstitutional for many reasons which we shall state in proper place. This is the first case, in which the censorship of films in general and precensorship in particular have been challenged in this Court ' and before we say anything about the arguments, it is necessary to set down a few facts relating to censorship of films and how it works in India. The Government of India appointed a Committee on March 28, 1968 to enquire into the working of the existing procedures for certification of cinematograph films for public exhibition in India and allied matters, under the Chairmanship of Mr. G. D. Khosla, former Chief Justice of the Punjab High Court. The report of the Committee has since been published and contains a valuable summary of the law of censorship not only in India but also in foreign countries. It is hardly helpful to the determination of this case to go into this history but it may be mentioned here that it is the opinion of experts on the subject that Indian :film censorship since our independence has become one of strictest in the world: See Film Censors and the Law by Neville March Hunilings p. 227 and Filmrecht: ein Handbuch of Berthold and von Hartleib(1957)p.215 quoted by Hunnings. ln 1966 Raj Bahadur (who succeeded Mrs. Indira Gandhi as Minister for Information and Broadcasting) said that Government would 'continue a liberal censorship ' and was considering certain expert opinion on the subject. He also suggested to the film industry that it should formulate a code which would be the best from all standards so that Government may be guided by it in formulating directives to the censors '; See Journal of Film Industry, February 25, 1966 also quoted by Hunnings at page 18 of his book. This suggestion came to nothing for obvious reasons. Film industry in India is not even oligopolistic in character and it is useless to expect it to classify films according to their suitability, as is done in the United States by the motion picture Association of America(MPAA) founded in October 1968. There the film industry is controlled by eight major producers and private control of film making is possible with the assistance of the National Association of Theatre Owners and Film Importers and Distributors of America. Having no such organisation for private censorship or even a private body like the British Board of Film Censors in England, the task must be done by Government if censorship is at all to be imposed. Films began ' to be 436 Sup Cl/71 exhibited in India at the turn of the last century and film censorship took birth in 1918 when the (2 of 1918) was passed. Two matters alone were then dealt with : (a) the licensing of cinema houses, and (b) the certifying of film for public exhibition. The censors had a wide discretion and no standards for their action were indicated. Boards of Film Censors came into existence in the three Presidency towns and Rangoon. The Bombay Board drew up some institutions for Inspectors of Films and it copied the 43 rules formulated by T. P. O 'Connor in. England. These are more or less continued even today. We do not wish to trace here the history of the development of film censorship in India. That task has been admirably performed by the Khosla Committee. Legislation in the shape of amendments of the Act of 1918 and a Production Code were the highlights of the progress. In 1952 a fresh consolidating Act was passed and it is Act 37 of 1952 (amended in 1959 by Act 3 of 1959) and that is the present statutory provision on the subject. It established a Board of Film Censors and provided for Advisory Panels at Regional Centres. Every person desiring to exhibit any film has to apply for a certificate and the Board after examining the film or having the film examined deals with it by: (a)sanctioning the film for unrestricted public exhibition; (b)sanctioning the film for public exhibition restricted to adults; (c)directing such excisions and modifications as it thinks fit, before sanctioning the film for unrestricted public exhibition or for public exhibition restricted to adults, as the case may be; or (d) refusing to sanction the film for public exhibition. The film producer is allowed to represent his views before action under (b) (c) and (d) is taken. The sanction under (a) is by granting a 'U ' certificate and under (b) by an 'A ' certificate and the certificates are valid for ten years. The Act then lays down the principles for guidance and for appeals in sections 5B and _5C respectively. These sections may be. read here "5B. principles for guidance in certifying films. (1)A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the, security of the State, friendly relations with foreign 455 States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. (2)Subject to the provisions contained in Sub section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition." "5C. Appeals. Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board (a) refusing to grant a certificate; or (b) granting only an "A" certificate; or (c) directing the applicant to carry out any excisions or modifications; may, within thirty days from the date of such order, appeal to the Central Government, and the Central Government may, after such inquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter, make such order in relation thereto as it thinks fit." By section 6, the Central Government has reserved a general revising power which may be exercised during the pendency of a film before the Board and even after it is certified. Under the, latter part of this power the Central Government may cancel a certificate already granted or change the 'U ' certificate into an 'A ' certificate or may suspend for 2 months the exhibition of any film. The above is the general scheme of the legislation on the subject omitting allied matters in which we are not interested in this case. It will be noticed that section 5B(1) really reproduces clause (2) of article 19 as it was before its amendment by the First Amendment. This fact has led to an argument which we shall notice presently. The second sub section of section 5B enables the Central Government to state the principles to guide the censoring authority, by issuing directions. In furtherance of this power the Central Government has given directions to the Board of Film Censors. They are divided into General Principles three in number, followed by directions for their application in what are called 'ruled '. The part dealing with the application of the principles is divided into four sections and each section contains matters which may not be the subject of portrayal in films. We may quote the General Principles here "1. No picture shall be certified for public exhibition which will lower the moral standards of those who see it. 45 6 Hence, the sympathy of the audience shall not be thrownon the side of crime, wrong doing, evil or sin. 2.Standards of life, having regard to the standards of thecountry and the people to which the story relates,shall not be so portrayed as to deprave the morality of the audience. 3.The prevailing laws shall not be so ridiculed as to create sympathy for violation of such laws. " The application of the General Principles is indicated in the four sections of the rules that follow so that a uniform standard may be applied by the different regional panels and Boards. The first section deals with films which are considered unsuitable for public exhibition. This section is divided into clauses A to F. 'Clause A deals with the delineation of crime, B with that of vice or immorality, C with that of relations between sexes, D with the exhibition of human form, E with the bringing into contempt of armed forces, or the public authorities entrusted with the administration of law and order and F with the protection of the susceptibilities of foreign nations and religious communities, with fomenting social unrest or discontent to such an extent as to incite people to crime and promoting disorder, violence, a breach of the law 'or disaffection or resistance to Government. Clauses E and F are further explained by stating what is un suitable and what is objectionable in relation to the topics under those clauses. Section 11 then enumerates subjects which may be objectionable in a context in which either they amount to indecency, immorality, illegality or incitement to commit a breach of the law. Section III then provides "It is not proposed that certification of a film should be refused altogether, or that it should be certified as suitable for adult audiences only, where the deletion of a part or parts, will render it suitable for unrestricted public exhibition or for exhibition restricted to adults, and such deletion is made, unless the film is such as to deprave the majority of the audience and even excisions will not cure the defects." Section IV deals with the protection of young persons and enjoins refusal of a certificate for unrestricted public exhibition in respect of a film depicting a story or containing incidents unsuitable for young persons: Emphasis in this connection is laid in particular upon 457 (i)anything which may strike terror in a young person, e.g., scenes depicting ghosts, brutality, mutilations, torture, cruelty, etc.; (ii)anything tending to disrupt domestic harmony or the confidence of a child in its parents, eg. scenes depicting parents quarrelling violently, or one of them striking the other, or one or both of them behaving immorally; (iii)anything tending to make a person of tender years insensitive to cruelty to others or to animals. " In dealing with crime under section I clause A, the glorification or extenuation of crime, depicting the modus operandi of criminals, enlisting admiration or sympathy for smiminals, holding up to contempt the forces of law against crime etc. are indicated, as making the film unsuitable for exhibition. In Clause B similar directions are given with regard to vice and immoral acts and vicious and immoral persons. In Clause C the unsuitability arises from lowering the sacredness of the institution of marriage and depicting rape, seduction and criminal assaults on women, immoral traffic in women, soliciting prostitution or procuration, illicit sexual relations, excessively passionate love scenes, indelicate sexual situations and scenes suggestive of immorality. In Clause D the exhibition of human form in nakedness or indecorously or suggestively dressed and indecorous and sensuous postures are condemned. In Section 11 are mentioned confinements, details of surgical operations, venereal diseases and loathsome diseases like leprosy and sores, suicide or genocide, female under clothing, indecorous dancing, importunation of women, cruelty to children, torture of adults, brutal fighting, gruesome murders or scenes of strangulation, executions, mutilations and bleeding, cruelty to animals, drunkenness or drinking not essential to the theme of the story, traffic and use of drugs, class hatred, horrors of war, horror as a predominant element, scenes likely to afford information to the enemy in time of war, exploitation of tragic incidents of war, blackmail associated with immorality, intimate biological studies, crippled limbs or malformations, gross travesties of administration of justice I and defamation of any living person. We have covered almost the entire range of instructions. It will be noticed that the control is both thematic and episodic. If the theme offends the rules and either with or without excision of the offending parts, the film remains still offensive, the certificate is refused. if the excisions can remove its offensiveness, the film is granted a certificate. Certifiable films are classified according to their suitability for adults or young people. This is the essential working of Censorship of motion pictures in our country. 458 The first question is whether the films need censorship at all ' Pre censorship is but an aspect of censorship and bears the same relationship in quality to the material as censorship after the motion picture has had a run. The only difference is one of the stage at which the State interposes its regulations between the individual and his freedom. Beyond this there is no vital difference. That censorship is prevalent all the world over in some form or other and pre censorship also plays a part where motion pictures are involved, shows the desirability of censorship in this field. The Khosla Committee has given a description generally of the regulations for censorship (including pre censorship) obtaining in other countries and Hunning 's book deals with these topics in detail separately for each country. The method changes, the rules 'are different and censorship is more strict in some Dlaces than in others, but censorship is universal. Indeed the petitioner himself pronounced strongly in favour of it in a paper entitled 'Creative Expression ' written by him. This is what he said: "But even if we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery, I doubt if anyone will advocate the same freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema. One can imagine the results if an unbridled commerical cinema is allowed to cater to the lowest common denominator of popular taste, specially in a country which, after two centuries of political and cultural domination, is still suffering from a confusion and debasement of cultural values. Freedom of expression cannot, and should not, be interpreted as a licence for the cinemagnates to make money by pandering to, and thereby propagating, shoddy and vulgar taste ' Further it has been almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation thrown in, _ has made the cinema picture more true to life than even the theatre or indeed any other form of representative article The motion picture is able to stir up emotions more deeply than any other product of article Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than 45 9 mature men and women. They also remember the action in the picture and try to emulate or imitate what they have seen. Therefore, classification of films into two categories of 'U ' films and 'A ' films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification. The petitioner pressed for acceptance of the minority views expressed from time to time in the Supreme Court of the United States and it is, therefore, necessary to say a few words about censorship of motion pictures in America and the impact of the First Amendment guaranteeing freedom of speech and expression in that country. The leading cases in the United States are really very few but they are followed in a very large number of per curiam decisions in which, while concurring with the earlier opinion of the Court, there is sometimes a restatement with a difference. As early as 1914 in Mutual Film Corpn. vs Industrial Commission of Ohio(1),Mr. Justice Me Kenna, speaking for the full Court, said that legislative power is not delegated unlawfully when a board of censors is set up to examine and censor, as a condition precedent to exhibition, motion picture films, to be publicly exhibited and displayed, with a view to passing and approving only such of them as are in the judgment of the board, moral, educational or amusing and forbidding those that are not. Speaking of the criteria stated in general words, it was said that general terms get "precision from the sense and experience of men and become certain and useful guides in reasoning and conduct". The first notice of change came in 1925 in Gitlow vs New York(2), when it was said that censorship had to pass the scrutiny of the First Amendment through the Fourteenth Amendment before speech and expression could be abridged by State laws. To this, was added in 1919 the test of 'clear and present danger ' pro pounded by Justice Holmes as the only basis for curtailing the freedom of speech and expression, see Shenck vs U.S.(3) and Justice Brandeis in Whitney vs California (4) laid down three components of the test (a)There must be a clear and present danger that speech would produce a substantial evil that the State has power to prevent. This is not to say that it is enough if there is 'fear ', there must be reasonable grounds to fear that serious evil would result from the exercise of speech and expression. (1) ; , (3) (1 919) ; (2) ; (4) ; 460 .lm15 (b)There must be a 'present ' or 'imminent ' danger and for this there must be reasonable grounds to hold this opinion and that no reasonable opportunity was available to avert the consequences; and (c)The substantive evil to be prevented must be serious ' before there can be a prohibition on freedom of speech and expression for the police power of the State could not be exercised to take away the guarantee to avert a relatively trivial harm to society. In 1931 in Near vs Minnesota(1) immunity of press from pre censorship was denied but pre censorship (as it is termed previous restraint) was not to be unlimited. A major purpose of the First Amendment was to prevent prior restraint. The protection was not unlimited but put on the state the burden of showing that the limitation challenged in the case was exceptional. In 1941 the Court handed down in Chaplinsky vs New Ham pshire(2) the opinion that free speech was not absolute at all times and in all circumstances, that there existed certain "well defined and narrowly limited classes of speech, the prevention and punishment of which had never been thought to raise any constitutional problem". This state of affairs Continued also in respect of motion pictures and the regulation of their public exhibition. Real attention was focussed on censorship after 1951. The effect of World War 11 on American society was the real cause because peoples notions of right and wrong from a social point of view drastically altered. Added to this were the inroads made by Justices Douglas and Black in Dennis vs U.S. (3) in the previously accepted propositions which according to them made the First Amendment no more than an admonition to Congress. In Beauharnais vs Illinois(4) Justice Douglas claimed for the freedom of speech, a preferred position because the provision was in absolute terms, an opinion which has since not been shared by the majority of the Court. In 1951 there came the leading decision Burstyn vs Wilson(,) This case firmly established that motion pictures were within the protection of the First Amendment through the Fourteenth. While recognising that there was no absolute freedom to exhibit every motion picture of every kind at all times and places, and that constitutional protection even against a prior restraint was not absolutely unlimited, limitation was said to be only in exceptional (1) ; (3) (1951) 341 U. section 494. (2) (4) ; (5) ; 461. cases. It however laid down that censorship on free speech and, expression was ordinarily to be condemned but the precise rules. governing other methods,of expression were not necessarily applicable. The application of the 14th Amendment has now enabled the Court to interfere in all cases of state restrictions where censorship fails to follow due process. The result has led to a serious conflict in the accepted legal opinion. The Supreme Court has had to deal with numerous cases in which censorship was questioned. The divergence of opinion in recent years has been very deep. Censorship of press, art and literature is on the verge of extinction, except in the ever shrinking area of obscenity. In the field of censorship of the motion picture there has been a tendency to apply the 'void for vagueness ' doctrine evolved under the due process clause. Thus regulations containing such words as 'obscene, 'indecent ', 'immoral ', 'prejudicial to the best interests of people ' , 'tending to corrupt morals ', 'harmful ' were considered vague criteria. In Kingsley International Pictures Corpn. vs Regents(1) where the film Lady Chatterley 's Lover was in question, certain opinions were expressed. These opinions formed the basis of the arguments on behalf of the petitioner. Justice Black considered that the court was the worst of Board Censors because they possessed no special expertise. Justice Frankfurter was of the opinion, that 'legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what was permissible expression as well as what society might permissibly prohibit, always remembering that the widest scope for freedom was to be given to the adventurous and imaginative exercise, of human spirit. ". Justice Douglas considered prior restraint as unconstiutional. According to him if a movie violated a valid law, the exhibitor could be prosecuted. The only test that seemed to prevail was that of obscenity as propunded inRoth vs United States(2). In that three tests were laid down: (a)that the dominant theme taken as a whole appeals to prurient interests according to the contemporary standards of the average man; (b)that the motion picture is not saved by any redeeming social value; and (c)that it is patently offensive because it is opposed to contemporary standards. (1) ; (2) ; 3 6 2 'The Hicklin test in Regina vs Hicklin(1) was not accepted. Side by side procedural safeguards were also considered. The leading case is Freedmen vs Maryland(2) where the court listed the following requirements for a valid film statute 1.The burden of proving that the film is obscene rests on the censor. 2.Final restraint (denial of licence) may only occur after judicial determination of the obscenity of the material. 3.The censor will either issue the license or go into court himself for a restraining order. 4.There must be only a 'brief period ' between the censor 's first consideration of film and final judicial determination. (As summarized by Martin Shapiro Freedom of Speech; The Supreme Court and Judicial Re view). These were further strengthened recently in Teitel Film Corp. v Cusak(3) (a per curiam decision) by saying that a non criminal process which required the prior submission of a film to a censor avoided constitutional infirmity only if censorship took place under procedural safeguards. The censorship system should, therefore, have a time limit '. The censor must either pass the film or go to ,court to restrain the showing of the film and the court also must give a prompt decision. A delay of 50 57 days was considered too much. The statute in question there had meticulously laid down the time for each stage of examination but had not fixed any time limit for prompt judicial determination and this proved fatal The fight against censorship was finally lost in the Times Film Corporation vs Chicago(4) but only by the slender majority of one Chief Justice Warren and Justices Black, Douglas and Brennan dissented. The views of these Judges were pressed upon us. Chief Justice Warren thought that there ought to be first an exhibition ,of an allegedly 'obscene film ' because Government could not forbid the exhibition of a film in advance. Thus prior restraint was said ;to be impermissible. Justice Douglas went further and said that censorship of movies was unconstitutional. Justice Clark, on the other hand, speaking for the majority, said : ". It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. (1) L. R, (2) ; (3) ; (4) ; 46 3 It is not for this Court to limit the State in its selection of the remedy it deems most effective. to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. " The argument that exhibition of moving pictures ought in the first instance to be free and only a criminal prosecution should be the mode of restraint when found offensive was rejected. The precensorship involved was held to be no ground for striking down a law of censorship. The minority was of the opinion that a person producing a film must know what he was to do or not to do. For, if he were not sure he might avoid even the permissible. In Interstate Circuit Inc. vs Dallas(1) certain expression were considered vague including 'crime delinquency ' 'sexual promiscuity ' 'not suitable, for young persons. According to the court the statute must state narrowly drawn, reasonably definite, standards for the Board to follow. Justice Harlan, however, observed that the courts had not found any more precise expressions and more could not be demanded from the legislature than could be said by the Court. However precision of regulation was to be the touchstone of censorship and while admitting that censorship was admissible, it was said that too wide a discretion should not be left to the censors. Meanwhile in Jacobellis vs Ohio 2 it was held that was laws could legitimately aim specifically at preventing distribution of objectionable material to children and thus it approved of the system of age classification. The Interstate Circuit Inc. vs Dallas(1) and Ginsberg vs New York(3) sat the seal on validity of ' age classification as constitutionally valid. There are two cases which seem to lie outside the main stream. Recently in Stanley vs Georgia(4) the Court seems to have gone back on the Roth case (supra) and held that the right to receive information and ideas, regardless of their social worth, is also fundamental to society. Another exception can only be understood on the basis of the recognition of the needs of a permissive society. Thus Mishkin vs New York removes the test of the average person by saying that if the material is designed for a deviant sexual group, the material can only be censored if taken as a whole, it appeals to the purient interest in sex of the members of that group. This is known as the. selective audience obscenity test and even children are a special class. See Ginsberg vs New (1)(1961) ; (2) ; , (3) ; (4) (1969) 394 U. section (5) ; 464 York(1). On the whole, however, there is in this last case a return to the Hicklin test in that obscenity is considered even from isolated passages. To summarize. The attitude of the Supreme Court of the United States is not as uniform as one could wish. It may be taken as settled that motion picture is considered a form of expression and entitled to protection of First Amendment. The view that it is only commercial and business and, therefore, not entitled to the protection as was said in Mutual Film Corpn. (2) is not now accepted. It is also settled that freedom of speech and expression admits of extremely narrow restraints in cases of clear and present danger, but included in the restraints are prior as well as subsequent restraints. The censorship should be based on precise statement of what may not be subject matter of film making and this should allow full liberty to the growth of art and literature. Age classification is permissible and suitability for special audiences is not to depend on whether the average man would have considered the film suitable. Procedural safeguards as laid down in the Freedman case(3) must also be observed. The film can only be censored if it offends in the manner set out in Roth 's case. The petitioner put before us ' all these dicta for our acceptance and added to them the rejection of censorship, particularly prior censorship by Chief Justice Warren and Justices Black and Douglas. He pointed out that in England too the censorship of the theatre has been abolished by the Theatres Act 1968 (1968 C. 54) and submitted that this is the trend in advanced countries. He also brought to our notice the provisions of the Obscene Publications Act, 1959 (7 & 8 Eliz. 2 C. 66), where the test of obscenity is stated thus : "1. Test of obscenity. (1)For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained of embodied in it. and the defence of public good is stated thus "4. Defence of public good. (1) ; (3) ; (2) ; 465 (1 ) A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. (2)It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground." He contended that we must follow the above provisions. We may now consider the English practice. In England there was little freedom of speech to start with. The Common Law made no provision for it. The two constitutional documents the Petition of Right (1628) and the Bill of Rights (1689) do not mention it. By the time of Queen Elizabeth I presses were controlled through licences and although they were granted, no book could be issued without the sanction of Government. The Star Chamber tried several cases of censorship and it even continued in the days of Cromwell. Milton was the first to attack censorship in his Areopagitica and that had profound effect on the freedom of speech. We find quotations from his writings in the opinions of Chief Justice Warren and Justice Dougles. Free dom of speech came to be recognised by slow stages and it was Blackstone who wrote in his Commentaries (Book IV p. 1517) "The liberty of the Press is indeed essential to the nature of a free State, but this consists in laying no previous restraints upon publications. " But censorship of theatres continued and no theatre could be licensed or a play performed without the sanction of the Lord Chamberlain. By the Theatres Act 1843 the Lord Chamberlain was given statutory control over the theatres. He could forbid the production of a play for the preservation of good manners, decorum or the public peace. There was ordinarily no censorship of the press in England. When cinematograph came into being the Cinematograph Act 1909 was passed to control cinemas. It has now been amended by the Cinematograph Act of 1952. Restrictions were placed on the exhibition of films to children (s.4) and on the admission of children to certain types of film. Today censorship of films is through the British Board of Film Censors which is an independent body not subject to control by the State. An elaborate inquiry is already on foot to consider whether state control is needed or not. Censorship of films is run on the lines 4 6 6 set by T.P. O 'Connor in 1918. These directions, as we said earlier, have had a great influence upon our laws and our directions issued by the Central Government, follow closely the 43 points of T.P. O 'Connor. It is wrong to imagine that there is no censorship in England. The Khosla Committee (p. 32) has given examples of the cuts ordered and also a list of films which were found unsuitable. The Board has never worked to a Code although the directions are followed. By 1950 three general, principles were evolved. They are: 1.Was the story, incident or dialogue likely to impair the moral standards of the public by extenuating vice or crime or depreciating moral standards ? 2.Was it likely to give offence to reasonably minded cinema audiences ? 3.What effect. would it have on the minds of children ? We have digressed into the practice of the United States and the United Kingdom because analogies from these two countries were mainly relied upon by the petitioner and they serve as a very appropriate back ground from which to begin discussion on the question of censorship and the extent to which it may be carried. To begin with our fundamental law allows freedom of speech and expression to be restricted as clause (2) itself shows. It was observed in Ranjit D. Udeshi vs State of Maharashtra(1). "Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions. or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality". We adhere to this statement and indeed it is applicable to the other spheres where control is tolerated under our fundamental law. The argument that section 5 B of the Cinematograph Act does (1)(1965) 1 S.C.R. 65. 4 6 7 not reproduce the full effect of the second clause of article 19 need not detain us. It appears that the draftsman used a copy of the Constitution. as it was before the First Amendment and fell into the error of copying the obsolete clause. 'That, however, does not make any difference. The Constitution has to be read first and the section next. The latter can neither take away nor add to what the Constitution has said on the subject. The word `reasonable ' is not to be found in section 5 B but it cannot mean that the restrictions can be unreasonable. No only the sense of the matter but the existence of the constitutional provision in part materia must have due share and reading the provisions of the Constitution we can approach the problem without having to adopt a too liberal construction of section 5 B. It, therefore, follows that the American and the British precedents cannot be decisive and certainly not the minority view expressed by some of the Judges of the Supreme Court of the former. The American Constitution stated the guarantee in absolute terms without any qualification. The Judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a vital difference in approach. This is what he said : "If we had a provision in our Constitution for 'reasonable ' regulation of the press such as India has included in hers, there would be room for argument that censorship in the interests of morality would be permissible". In spite of the absence of such a provision Judges in America have tried to read the words 'reasonable restrictions ' into the First Amendment and thus to make the rights it grants subject to reasonable regulation. The American cases in their majority opinions, therefore, clearly support a case of censorship. It would appear from ',this that censorship of films, their classification according to age groups and their suitability for unrestricted exhibition with or without excisions is regarded as a valid exercise of power in the interests of public morality, decency etc. This is not to be construed as necessarily offending the freedom of speech and expression. This has, however, happened in the United States and therefore decisions, as Justice Douglas said in his Tagore Law Lectures (1939), have the flavour of due process rather than what was conceived as the _purpose of the First Amendment. This is because social interest of the people override individual freedom. Whether we regard the state as the paren patriae or as guardian and promoter of general welfare, we have to concede, that these restraints on liberty may be justified by their absolute necessity and clear purpose. Social interests take in not only 468 the interests of the community but also individual interests which ,cannot be ignored. A balance has therefore to be struck between ,the rival claims by reconciling them. The, larger interests of the community require the formulation of policies and regulations to ,combat dishonesty, corruption, gambling, vice and other things of immoral tendency and things which affect the security of the, State and the preservation of public order and tranquillity. As Ahrens said the, question calls for a good philosophical campass and strict logical methods. With this preliminary discussion we say that censorship in India (and precensorship is not different in quality) has full justification in the field of the exhibition of cinema films. We need not generalize about other forms of speech and expression here for each such fundamental right has a different content and importance. The censorship imposed on the making and exhibition of films is in the interests of society. If the regulations venture into something which goes beyond this legitimate opening to restrictions, they can be questioned on the ground that a legitimate ,power is being abused. We hold, therefore, that censorship of films including prior restraint is justified under our Constitution. This brings us to the next questions : How far can these restrictions go ? and how are they to be imposed ? This leads to an examination of the provisions contained in section 5 B (2). That provision authorises the Central government to issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition. The first question raised before us is that the legislature has not indicated any guidance to the Central Government. We do not think that this is a fair reading of the section as a whole. The first sub section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters 'there set down. The Central Government in dealing with the problem of censorship will have to bear in mind those, principles and they will be the philosophical compass and the logical methods of Ahrens. Of course, Parliament can adopt the directions and put them in schedule to the Act (and that may still be done), it cannot be said that there is any delegation of legislative function. If Parliament made a law giving power to close certain roads for certain vehicular traffic at stated times to be determined by the Executive authorities and they made regulations in the exercise of that power, it cannot for a moment be argued that this is insufficient to take away the right of locomotion. Of course, every thing may be done by legislation but it is not necessary to do so 4 69 if the policy underlying regulations is clearly indicated. The Central Government 's regulations are there for consideration in the light of the guaranteed freedom and if they offend substantially against that freedom, they may be struck down. But as they stand they cannot be challeneged on the ground that any recondite theory of law making or a critical approach to the separation of powers is infringed. We are accordingly of the opinion that section 5 B (2) cannot be challenged on this ground. This brings us to the manner of the exercise of control and restriction by the directions. Here the argument is that most of the regulations are vague and further that they leave no scope for the exercise of creative genius in the field of article This poses the first question before us whether the 'void for vagueness ' doctrine is applicable. Reliance in this connection is placed on Municipal Committee Amritsar and anr. vs The State of Rajasthan(1). In that case a Division Bench of this Court lays down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause or that it is vague. Shah J, speaking for the Division Bench, observes: ". the rule that an Act of a competent legislature may be 'struck down ' by the courts on the ground of vagueness is alien to our constitutional system. The Legislature of the State of Punjab was competent to enact legislation in respect of 'fairs ', vide Entry 28 of List II of the 7th Schedule to the Constitution. A law may be declared invalid by the superior courts in India if the legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any constitutional provision, but not on the ground that it is vague. " The learned Judge refers to the practice of the Supreme Court of the United State in Claude C. Caually vs General Construction Co.(2) where it was observed: "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." The learned Judge observes in relation to this as follows "But the rule enunciated by the American Courts has no application under our constitutional set up. This rule is regarded as an essential of the 'due process (1) A.I.R. 1960 S.C. 1100. 3 436SupCI/71 (2) 47 0 clause ' incorporated in the American Constitution by the 5th and 14th Amendments. The courts in India have no authority to declare a statute invalid on the ground that it violates 'the due process of law '. Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State Legislature". Relying on the observations of Kania C.J. in A. K. Gopalan vs The State of Madras(1) to the effect that a law cannot be declared void because it is opposed to the spirit supposed to pervade the Constitution but not expressed in words, the conclusion above set out is reiterated. The learned Judge, however, adds that the words 'cattle fair ' in act there considered are sufficiently clear and there is no vagueness. These observations which are clearly obiter are apt to be too generally applied and need to be explained. While it is true that the principles evolved by the Supreme Court of the United States of America in the application of the Fourteenth Amendment were eschewed in our Constitution and instead the limits of restrictions,, on each fundamental right were indicated in the clauses that follow the first clause of the nineteenth article, it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered. A very partinent example is to be found in State of Madhya Pradesh and Anr. vs Baldeo Prasad (2) where the Central Provinces and Berar Goondas Act 1946 was declared void for uncertainty. 'the condition for the application of sections 4 and 4A was that the person sought to be proceeded against must be a goonda but the definition of goonda in the Act indicated no tests for deciding which person fell within the definition. The provisions were therefore held to be uncertain and vague. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the (1) ; (2) ; at 979. 4 7 1 probability of the misuse of the law to the deteriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. Judging the directions from this angle, we find that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunication of the freedoms in article 19(1)(a). The general principles which are stated in the directions seek to do no more than restate the permissible restrictions as stated in cl. (2) of article 19 and section 5 B(1) of the Act. They cannot be said to be vague at all. Similarly, the principles in section IV of the directions in relation to children and young persons, are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I Clauses A to D which need to be considered. Read individually they give ample direction as to what may not be included. It is argued on the, basis of some American cases already noticed by us that these expressions are vague. We do not agree. The words used are within the common understanding of the average man. For example the word 'rape ' indicate what the word is, ordinarily, understood to mean. It is hardly to be expected or necessary that the definition of rape in the Penal Code must be set down to further expose the meaning. The same may be said about almost all the terms used in the directions and discussed before us. We do not propose to deal with each topic for that is really a profitless ven ture. Fundamental rights are to be judged in a broadway. It is not a question of semantics but of the substance of the matter. It is significant that Justice Douglas who is in favour of a very liberal and absolute application of the First Amendment in America is of the view that 'sexual promiscuity ' was not vague, while those in favour of prior restraints thought that it was. We have referred earlier to the case. We are quite clear that expressions like 'seduction ', 'immoral traffic in women '. 'soliciting, pros titution or procuration ', 'indelicate sexual situation ' and 'scenes suggestive of immorality ', 'traffic and use of drugs ', 'class hatred" 'blackmail associated with immorality ' are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship. Any more definiteness is not only not expected but is not possible. Indeed if we were required to draw up a list we would also follow the same general pattern. But what appears to us to be the real flaw in the scheme of the directions is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears. 472 to be completely forgotten. Artistic as well as inartistic presentations are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi 's case(1) this court laid down certain Principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply mutatis mutandis to films and also other areas besides obscenity. The Khosla Committee also adopted them and recommended them for the guidance of the film censors. We may reproduce them here as summarized by the Khosla Committee: "The Supreme Court laid down the following principles which must be carefully studied and applied by our censors when they have to deal with a film said to be objectionable on the ground of indecency or immorality : (1) Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. (2) Comparison of one book with another to find the extent of permissible action is not necessary. (3) The delicate task of deciding what is artistic and what is obscene has to be perfo rmed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant. (4) An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall. (5)The interest s of contemporary society and particularly the influence of the book etc. , on it must not be overlooked. (6) Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked. (7) Treating with sex in a manner offensive to public decency or morality which are the words of our (1) ; 473 Fundamental Law judged by our national stan dards and considered likely to pender to lascivious, prurient or sexually precocious minds must determine the result. (8) When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus% books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene. (9) Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and, decency. (1 0)Knowledge, is not a part of the guilty act. The offender 's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability. " Applicationof these principles does not seek to whittle down the fundamentalright of free speech and expression beyond the limits permissibleunder our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere. As was observed in the same case: ". . The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. . ." A similar line has to be drawn in the case of every topic in films considered unsuitable for _public exhibition or specially to children. We may now illustrate our meaning how even the items men tioned in the directions may figure in films subject either to their artistic merit or their social value over weighing their offending character. The task of the censor is extremely delicate and his duties cannot be the subject of an exhaustive set of commands. 47 4 established by prior ratiocination. But direction is necessary to him so that he does not sweep within the terms of the directions vast areas of thought, speech and expression of artistic quality and social purpose and interest. our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society. The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essen tially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commerical role by making its own appeal. This draws in the censors scissors. Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother. When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes. No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence. And yet if one goes by the letter of the directions the film cannot be shown. Similarly, scenes depicting leprosy as a theme in a story or in A documentary are not necessarily outside the protection. If that were so Verrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid (from where Verrier Elwyn borrowed the idea) would never see the light of the day. Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila. If Nadir Shah made golgothas of skulls, must we leave them out of the story :because people must be made to view a historical theme without true history ? Rape in all its nakedness may be objectionable but Vol 47 5 taire 's Candide would ' be meaningless without Cunegonde 's episode with the soldier and the story of Lucrece could never be depicted on the screen. Therefore it is not the elements of rape, leprosy, sexual immorality which should attract the censor 's scissors but how the theme is handled by the producer. It must, however, be remembered that the, cinematograph is a powerful medium and its appeal is different. The horrors of war as depicted in the famous etchings of Goya do not horrify one so much as the same scenes rendered in colour and with sound and movement, would do. We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra but a documentary from them as a practical sexual guide would be abhorrent. We have said all this to show that the items mentioned in the directions are not by themselves defective. We have adhered to the 43 points of T.P. O 'Connor framed in 1918 and have made a comprehensive list of what may not be shown. Parliament has left this task to the Central Government and, in our opinion, this could be done. But Parliament has not legislated enough, nor has the Central Government filled in the gap Neither has separated the artistic and the sociably valuable from that which is deliberately indecent, obscene, horrifying or corrupting. They have not indicated the need of society and the freedom of the, individual. They have thought more of the depraved and less of the ordinary moral man. In their desire to keep films from the abnormal, they have excluded the moral. They have attempted to bring down the public motion picture to the level of home movies. It was for this purpose that this Court was at pains to point out in Ranjit D. Udeshi 's case(1) certain considerations for the guidance of censorship of books. We think that those guides work as well here. Although we are, not inclined to hold that the directions are defective in so far as they go, we are, of opinion that directions to emphasize the importance of art to a value judgment by the censors need to be included. Whether this is done by Par liment or by the Central Government it hardly matters. The whole of the law and the regulations under it will have always to be considered and if the further tests laid down here are followed, the system of censorship with the procedural safeguards accepted by the Solicitor General will make censorship accord with our fundamental law. We allow this petition as its purpose is more than served by the assurance of the Solicitor General and what we have said, but in the circumstances we make no order about costs. Petition allowed.

The petitioner made a documentary film called "A Tale of Four Cities" which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the country. The film included certain shots of the red light district in Bombay. Although the petitioner applied to the Board of Film Censors for a `U ' Certificate for unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted to adults. On an appeal made to it by the petitioner, the Central Government issued a direction on July 3, 1969 that a `u ' Certificate may be granted provided certain specified cuts were made in the film. The petitioner thereafter field the present petition seeking a declaration that the provisions of of the , together with the rules prescribed by the Central Government on February 6, 1960 in the exercise of its powers under section 5 B of the Act were un constitutional and void; he further prayed that the direction dated July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight of free speech and expression was denied by the order of the Central Government and that he was entitled to a 'U ' Certificate for the film as of right. At the hearing of the petition the Central Government indicated it had ,decided to grant a 'U ' Certificate to the petitioner 's film without the cuts previously ordered. The petitioner then applied for amendment of the petition so as toenable him to challenge pre censorship as offensive to freedom of speechand expression and alternatively the provisions of the Act and the Rules,orders and directions under the Act as vague, arbitrary and indefinite. The Court allowed the amendment holding the petitioner was right in contending that a person who invests capital in promoting or producing a film must have clear guidance in advance in the matter of censorship of films even if the law of pre censorship be not violative of the fundamental right. It was contended inter alia on behalf of the petitioner (a) that pre censorship itself violated the right to freedom of speech and expression; and (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action. HELD : (i) Censorship of films including prior restraint is justified under the Constitution. It has been almost universally recognised that the treatment of motion ,pictures must be different from that of other forms of art and expression. 447 This arises from the instant appeal of the motion picture, its versatility, realism (often surrealism), and its coordination of the visual and aural senses. The art of the cameraman, with trick photography, vistavision and three dimensional representation, has made the cinema picture more true to life than even the theatre or indeed any other form of representative article The motion picture is able to stir up emotions more deeply than any other product of article Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or/ imitate what they have seen. Therefore, classification of films into two categories of 'U ' films and 'A ' films is a reasonable classification. It is also for this reason that motion pictures must be regarded differently from other forms of speech and expression. A person reading a book or other writing or bearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification. [458 G] (ii)Section 5 B authorises the Central Government to issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under the Act in sanctioning films for public exhibition. it cannot be said that this Section has not indicated any guidance to the Central Government. The first sub section states the principles and read with the second clause of the nineteenth article it is quite clearly indicated that the topics of films or their content should not offend certain matters there set down. A law cannot be declared void because it is opposed to the spirit supposed to pervade the Constitution but not expressed in words. However it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of Do such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution, This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. [470 G] Judging the directions, 'rules and regulations from this angle, it must be held that there are general principles regarding the films as a whole and specific instances of what may be considered as offending the public interest as disclosed in the clause that follows the enunciation of the freedoms in article 19(1) (a). The general principles which are stated in the directions given under section 5 B(2) seek to do no more than restate the permissible restrictions as stated in cl. (2) of article 19 and section 5 B(1) of the Act. They cannot be said to be vague at all. Similarly, the prin ciples in section IV of the directions in relation to children and young persons are quite specific and also salutary and no exception can be taken. It is only the instances which are given in Section I Clauses A to D which need to be considered. Read individually they give ample direction as to what may not be included. [471 B] 448 It is clear that expressions like 'seduction ', 'immoral traffic in women ', soliciting. prostitution or, procuration ', 'indelicate sexual situation ' and scenes suggestive of immorality ', 'traffic and use of drugs ', 'class hatred ', 'blackmail associated with immorality ' are within the understanding of the average men and more so of persons who are likely to be the panel for purposes of censorship. Any more definiteness is not only not expected but is not possible. [471 G] Municipal Committee Amritsar and anr. vs The State of Rajasthan, A.I.R. 1960 S.C. 1100; explained. Claude C. Caually vs General Construction Co. ,,(1926) ; A. K. Gopalan vs The State of Madras, ; and State of Madhya Pradesh and Anr. vs Baldeo Prasad, ; at 979; referred to. (iii)A real flaw in the scheme of the directions under section 5 B(2) is a total absence of any direction which would tend to preserve art and promote it. The artistic appeal or presentation of an episode robs it of its vulgarity and harm and this appears to be completely forgotten. Artistic as well as inartistic presentation are treated alike and also what may be socially good and useful and what may not. In Ranjit D. Udeshi 's case this Court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn. Those principles apply miutatis mutandis to films and also other areas besides obscenity. Although it could not be held that the directions are defective in so far as they go, directions to emphasize the importance of art to a value judgment by the censors need to be included. [471 H] U.S., U.K. and other case law considered.

Appeal No. 65 of 1952. Appeal from an award dated 17th November, 1951, made by the Labour Appellate Tribunal of India, Calcutta, in Appeal No. 280 of 1951. K. P. Khaitan (Harnam Das, with him) for the appellant. H. B. Asthana for the respondents. Gopalji Mehrotra for the Intervener. December 2. The Judgment of the Court was delivered by BHAGWATI J. This is an appeal by special leave against the decision of the Labour Appellate Tribunal, Calcutta, upholding the award made by the State Industrial Tribunal, Uttar Pradesh, with certain modifications. An industrial dispute arose between the appellant, the Vishwamitra Press Karyalaya, Kanpur, and the respondents, the workers of the Vishwamitra Press as represented by the Kanpur Samachar Patra Karamchari Union, Kanpur, in regard to the alleged victimisation of certain workmen under the guise of 'retrenchment. That industrial dispute was referred to the Industrial Tribunal, by a notification dated the 24th April, 1951. The time for making the award expired on the 9th June, 1951, and on the 9th June. 1951, a further notification was issued extending the time for making the award up to the 30th June, 1951. The 30th June, 1951, was a public holiday and the 1st July was a Sunday. The Industrial Tribunal made its award on the 2nd July, 1951, and pronounced it in open court on that day. It was however thought by the Uttar Pradesh Government that the award was beyond time and invalid and on the 18th July, 1951, a notification was issued extending the period up to the 3rd July, 1951. This award was challenged by the appellant before the Labour Appellate Tribunal. The Labour Appellate. Tribunal negatived the Contentions of the appellant. The appellat applied 274 for special leave which was granted by this Court on the 21st December, 1951, limited to the following grounds: " (1) The Government had no power to extend the time of the making of award after the expiry of the time originally fixed, and the award made by the Adjudicator after such time is illegal, ultra vires, inoperative and void. (2)In any case the State Government I had extended the time for making the award till 30th June, 1951, and the Adjudicator 's award made after that date is void. (3)That the extension of time by the Government on. 21st July, 1951, after even the time extended previously had expired, was ultra vires, and it could not make a void award a valid award. " The industrial dispute which arose between the appellant and the respondents was referred by the Uttar Pradesh Government to the Industrial Tribunal in exercise of the powers conferred by sections 3 and 4 of the Uttar Pradesh . The Uttar Pradesh Government had in exercise of the powers conferred by section 3 (d) of the Act promulgated an order inter alia providing for the adjudication of the industrial disputes referred by it to the Industrial Tribunals. Paragraph 16 of that order ran as under : " The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days (excluding holidays observed by courts subordinate to the High Court) from the date of reference made to it by the State Government, and shall thereafter as soon as possible supply a copy of the same to the parties to the dispute, and to such other persons or bodies as the State Government may in writing direct. Provided that the State Government may extend the said period from time to time." Paragraph 9 which prescribed the powers and functions of Tribunals inter alia provided: 275 "(9). The decision shall be in writing, and shall be pronounced in open court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it. " It was not disputed before us that the original period calculated in accordance with paragraph 16 above expired on the 9th June, 1951, and the Uttar Pradesh Government validly extended the period up to the 30th June, 1951. It was however contended that the Industrial Tribunal should have made its award on the 30th June, 1951, and not on the 2nd July, 1951, as it purported to do. It was urged that the provision as to excluding holidays observed by courts subordinate to the High Court which obtained in paragraph 16 above did not apply when the period was extended up to a particular date. It would apply only if the period was extended by a particular number of days when for the purpose of the computation of those days the holidays would have to be excluded in the manner therein mentioned. The Uttar Pradesh Government having extended the period up to the, 30th June, 1951, it was submitted that the award, should have been made by the 30th June, 1951, and, not later and having been made on the 2nd July, 1951, was therefore beyond time and invalid. This argument might well have prevailed but for the provisions of section 10 of the U. P. General Clauses Act, 1904. That section provides: " Where, by any United Provinces Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed; on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open. " The Industrial Court was closed on the 30th June, 1951, which was declared a public holiday. The 1st July, 1951, was a Sunday and it was competent to the 'Industrial Court to pronounce its decision on the next 276 afterwards on which the Industrial Court was n, i.e., the 2nd July, 1951. Prima facie therefore award which was pronounced on the 2nd July, 1, was well within time. The only thing which Shri Khaitan counsel for the appellant urged before us therefore was that the Industrial Court was not a court within the meaning of section 10 of the U. P. General Clauses Act, "The court" according to his submission could only be construed mean a court in the hierarchy of the civil courts the State and an Industrial Court did not fall hin that category. We are unable to accept this intention of Shri Khaitan. The Uttar Pradesh industrial Disputes Act, 1947, was an Uttar Pradesh t. The General Order dated the 15th March, 1951, which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by e U. P. Government in exercise of the powers conferred upon it by section 3 (d) of the Act. Paragraph (9) of the General Order provided for the decision ing pronounced by the Industrial Tribunal in open urt and we fail to understand how it could ever be ged that the Industrial Tribunal was not a court ithin the meaning of section 10 of the U. P. General lauses Act. If the Industrial Tribunal was thus a ourt within the meaning of section 10 of the U. P. General Clauses Act the court was closed on the 30th ane, 1951, as also on the 1st July, 1951, and the decion could be pronounced by the Industrial Court on i.e next day afterwards on which it was open, i.e., on ne 2nd July, 1951. In our opinion therefore the ecision which was pronounced on the 2na July, 951, 'was well within time and was valid and binding ' in the parties. The above decision is determinative of this appeal, and the appeal will therefore stand dismissed with costs. Appeal dismissed. Agent for the respondents and the intervener: C. P. Lal.

The time prescribed for making an award under the U. P. , expired on the 9th June, 1951. The Government extended the period up to 30th June, 1951. The 30th June was a public holiday and 1st July was a Sunday and the Industrial Tribunal pronounced its award on the 2nd July: Held, that an Industrial Tribunal to which a dispute is referred under the U. P. , is a " Court " within the meaning of section 10 of the U.P. General Clauses Act, 1904, and, as the 30th June and 1st July were holidays, the award pronounced on the 2nd July was not invalid on the ground that it was not pronounced within the period fixed. 273

ICTION: Writ Petition (CRL) Nos. 1566/86, 186/85,192/86,338/88 & 649/87. (Under Article 32 of the Constitution of India.) R.K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd. Naseem, Rakesh K. Khanna, P.K. Jain, Mukul Mudgal, Sanjay Parikh, B.P. Singh, P. Krishna Rao, B.K. Prasad, Ms. Malini Poduwal, Lalit Kumar Gupta, Manoj Swarup, Harish Salve, Rajiv Garg, Rajiv Shakdhar, N.D. Garg, L.K. Gupta (Amicus curiae), M. Veerappa and Dalveer Bhandari for the Petitioners. K. Parasaran, Attorney General, B. Datta, Additional Solicitor General, V.C. Mahajan. T.U. Mehta, Anand Prakash, Ms. A Subhashini, A.K. Srivastava, S.K. Bhattacharya, M.N.Shroff, Ms. Sushma Ralhan. Mahabir Singh, AV. Rangam and R.S. Suri for the Respondents. 519 A.K. Goel, Ajit Pudissery and Mrs. Jayamala Singh for the Interveners. The following Judgments of the Court were delivered: OZA, J. These matters came up before us because of the conflict in the two decisions of this Court:(i) T.V. Va theeswaran vs State of Tamil Nadu, ; Sher Singh & Others vs The State of Punjab, ; and observations in the case of Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; In Vatheeswaran 's case, a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life. The Court observed that: "Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death." In Sher Singh 's case which was a decision of a three Judges ' Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commu tation and two years rule could not be laid down in cases of delay. It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence. The Court observed: "Apart from the fact that the rule of two years run in the teeth of common experience as regards the time generally occupied by pro ceedings in the High Court, the Supreme Court and before the executive authorities. We are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprison ment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid 520 of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live. " It was further observed: "Finally, and that is no less important, the nature of the offence, the diverse circum stances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to wheth er the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by a sen tence of life imprisonment cannot follow by the application of the two years ' formula, as a matter of "quod erat demonstrandum". In Javed 's case, it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of death into im prisonment for life. It is because of this controversy that the matter was referred to a five Judges ' Bench and hence it is before us. Learned counsel for the petitioners at length has gone into the sociological, humane and other aspects in which the question of sentence of death has been examined in various decisions and by various authors. It is however not disputed that in Bachan Singh etc. vs State of Punjab etc. ; , constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P.N. Bhagwati, as he then was, which is the minority opinion in Bachan Singh 's case. In his opinion Justice P.N. Bhagwati has conducted a detailed research and has considered the materi al about the various aspects of sentence of death. Learned Attorney General appearing for the respondents also referred to some portions of the judgment but contended that howsoev er condemned the sentence may be but its constitutional validity having been accepted by this Court all this study about looking at it from various angles is not of much consequence. He also contended that the opinion has been drifting and the statistics reveal that 521 at one time there was a trend towards abolition of death sentence and then a reverse trend started and therefore all this, so far as the present case is concerned, is not neces sary. One of the contentions advanced by learned counsel for the petitioners was that apart from all other considerations it is clear that this is a sentence which if executed is not reversible and even if later on something so glaring is detected which will render the ultimate conclusion to be erroneous the person convicted and executed could not be brought back to life and it was on this basis that it was contended that although the law provides for the sentence and it has been held to be constitutional but still the Courts should be slow in inflicting the sentence and in fact it was contended that courts are in fact slow in awarding the sentence. In Bachan Singh 's case, it was observed: "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 320, Penal Code, on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antitheti cal views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners ' argument that retention of the death penalty in the impugned provisions, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people the world over, including sociologists, legislators, jurists, judges and administra tors still firmly believe in the worth and necessity of capital punishment for the pro tection of society, if in the perspective of prevailing crime conditions in India, contem porary public opinion channalised through the people 's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware of the existence of death 522 penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Proce dure Code and the insertion of the new sec tions 235(2) and 354(3) in that Code providing for pre sentence hearing and sentencing proce dure on conviction for murder another capital offences were before the Parliament and pre sumably considered by it when in 1972 73, it took up revision of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it cannot be said that the provisions of death penalty as an alternative punishment for murder, in section 302, Penal Code, is unrea sonable and not in public interest. Therefore, the impugned provision in section 302, vio lates neither the letter nor the ethos of Article 19. " We are in entire agreement with the view expressed above. It is not necessary to go into the jurisprudential theories of punishment deterrent or retributive in view of what has been laid down in Bachan Singh 's case, with which we agree but the learned counsel at length submitted that the modern theorists of jurisprudence have given a go bye to the retributive theory of punishment although in some coun tries it is recognised on a different principle i.e. to pacify the public anger whereas some theorists have tried to put both the theories together. So far as the deterrent theory of punishment is concerned even about that doubts have been expressed as regards the real deterrent effect of punishment. The absence of determent effect has been at tributed to various causes sometimes long delay itself as public memory is always short. When the convict is utlimate ly sentenced and executed people have forgotten the offence that he has committed and on this basis it is sometimes felt that it has lost its importance. In the present case we are not very much concerned with all these questions except to some extent the question of delay and its effect. It was also contended that this sentence is a sentence which is irreversible thereby meaning that if ultimately some mistake in convicting and executing the sentence is detected after the sentence is executed there is no possi bility of correction. After all the criminal jurisprudence which is in vogue in our system even otherwise eliminates all possibilities of error as benefit of doubt at all stages goes in favour of accused. Apart from it there are only a few offences where sentence of death is provided and there too the manner in which the 523 law has now been changed ultimately the sentence of death is awarded in the rarest of rare case. Therefore not much could be made of the possibility of an error. The offences in which sentence of death is provided are under Sections 120 B (in some cases), 121, 132,302,307 (in some cases) and 396. The law as it stood before 1955 the Court was expected to give reasons if it chose not to pass a sentence of death as normally sentence of death was the rule and alternative sentence of imprisonment of life could only be given for special reasons. As Section 367 clause (5) in the Code of Criminal Procedure, 1898 stood: "If the accused is convicted for an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed." Section 367 clause (5) of Cr. P.C. was amended in 1955 and after the amendment discretion was left to the courts to give either sentence. Section 367 clause (5) after the amendment reads: "In trials by jury, the Court need not write a judgment, but the Court of Sessions shall record the heads of the charge to the jury: Provided that it shall not be neces sary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand. " Thus the legislature dropped that part of the sub clause which made it necessary for the Court to state reasons for not awarding sentence of death. Thus after the amendment the legal position was that it was the discretion of the Court to award either of the sentences. In the Code of Criminal Procedure 1973 Section 354 clause (3) has now been introduced and it has been provided that in all cases of murder, life imprisonment should be given unless there are special reasons for giving sentence of death. This provision Sec. 354 clause (3)reads: "When the conviction is for an offence punish able with 524 death or in the alternative with imprisonment for life or imprisonment of a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sen tence. " It is thus clear that before 1955 sentence of death was the rule, the alternative sentence had to be explained by rea sons. Thereafter it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except for the special reasons to be recorded sentence of death could be passed. It is therefore clear that this indicates a trend against sentence of death but this coupled with the decisions ultimately wherein sentence of death has been accepted as constitutional go to show that although there is a shift from sentence of death to lesser sentence but there is also a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases. It is there fore clear that in spite of the divergent trends in the various parts of the World there is consistent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty. As stated generally that it is awarded in the rarest of rare cases and in this accepted position of law, in our opinion, it is not necessary to go into the academic question about sociologi cal and humane aspects of the sentence and detailed examina tion of the jurisprudential theories. It was also contended though not very seriously that in ultimate analysis out of the two sentences imprisonment for life or death it has been left to the discretion of the courts. On the one hand it was suggested that there are no norms laid down for exercise of discretion but on the other hand it was also admitted that it is very difficult to lay down any hard and fast rule and apparently both the sides realised that the attempt that was made by this Court in enumerating some of the circumstances but could not lay down all possible circumstances in which the sentence could be justified. In Machhi Singh and others vs State of Punjab, it was observed that: "In this background the guidelines indicated in Bachan Singh 's case, will have to be culled out and applied to the facts of each individu al case where the question of imposing of death sentence arises. The following proposi tions emerge from Bachan Singh 's case: (i) The extreme penalty of death need not be inflicted 525 except in gravest cases of extreme culpabili ty. (ii) Before opting for the death penalty the circumstances of the 'offender ' also require to be taken into consideration along with the circumstances of the 'crime '. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circum stances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circum stances which speak in favour of the offender? If upon taking an overall global view of all the circumstances in the light of the afore said ' proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. " In ultimate analysis it could not be disputed and was not seriously disputed that the circumstances in which the extreme penalty 526 should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and in this context in ultimate analysis it is not doubted that the Legislature therefore was right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof. In the matter before us we are mainly concerned with a) delay in execution of the sentence of death; b) what should be the starting point for computing this delay?; c) what are the rights of a condemned prisoner who has been sentenced to death but not executed? and d) what could be the circum stances which could be considered alongwith the time that has been taken before the sentence is executed. The main theme of the arguments on the basis of delay has been the inhuman suffering which a condemned prisoner suffers waiting to be executed and the mental torture it amounts to and it is in this background also that the par ties argued at length about the starting point which should be considered for computing delay in execution of the sen tence. On the one hand according to the petitioners the mental torture commences when the trial court i.e. the Sessions Court pronounces the judgment and awards capital punishment. However, learned counsel also conceded that even the condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court. Mainly therefore it was contended that the real mental torture commences after the death sentence is confirmed by the High Court and therefore to consider the question of delay the time should be computed from the date of the High Court judgment. On the other hand learned Attorney General contended that even if the judgment of confirmation by the High Court is passed in which capital punishment is awarded, invariably comes to this Court and this Court ordinarily grants leave and ap peals are heard at length and it was therefore contended that the delay in execution of the sentence really could be considered after the pronouncement of the final verdict by this Court and it is only after the final verdict is pro nounced that it could be said that the judicial process has concluded. It is no doubt true that sometimes in these procedures some time is taken and sometimes even long time is spent. May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly so that all this delay upto the final judicial process is taken care of while 527 the judgment is finally pronounced and it could not be doubted that in number of cases considering the time that has elapsed from the date of the offence till the final decision has weighed with the courts and lesser sentence awarded only on this account. As early as in 1944, the Federal Court in Piare Dusadh and others vs The King Emperor, [1944] Federal Court Reports 61 observed: "It is true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under the threat of execution, and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the valid ity of the sentences themselves. We do not doubt that this court has power, where there has been inordinate delay in executing death sentences in cases which come before it, to allow the appeal in so far as death sentence is concerned and subsitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally im posed." Similarly in State of Uttar Pradesh vs Lalla Singh and others, ; Sadhu Singh vs State of U.P., AIR 1978 SC 1506; State of U.P. vs Sahai, AIR 1981 SC 1442 and Joseph Peter vs State of Goa. Daman & Diu, ; while finally deciding the matter the courts have taken notice of the delay that has occurred in the judicial proc ess. It was contended that Article 21 contemplates not only a fair procedure but also expeditious procedure and in this context it was contended that observations be made so that judicial process also is concluded as expeditiously as possible. Learned Attorney General has filed compilation of rules of various High Courts and it is not disputed that practically in all the High Courts, a confirmation case where the sentence of death is awarded by the Sessions Court and the case is pending in the High Court for confirmation time bound programme is provided in the rules and it could be said that except on some rare occasion the High Court has disposed of a confirmation case between six months to one year and therefore it could not be said that there is no procedure provided for expeditious disposal of these cases. At the Sessions level also the normal procedure of the Sessions trial is that it is taken up day to day although after coming into force of the Code of 528 Criminal Procedure in 1973 where the number of offences triable by the Sessions Court have been increased but there is sometimes a slight departure from the normal rule which is the cause to some extent for some slackness in the Ses sions trial but attempt is always made and it is expected that Sessions case where offences alleged is one which is punishable with death should be given top priority and normally it Is given top priority and it is expected that the trials must continue day to day unless it is concluded. Although it is well known that sometimes it is at the in stance of the advocates appearing for defence also that this normal rule is given a go bye but ordinarily it is expected that these cases must be tried expeditiously and disposed of. Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us a Bench of five Judges, was listed for heating after a long interval of time. We do not know why this reference could not, be listed except what is generally well known the difficulty of providing a Bench of five Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms Day. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end. After the matter is finally decided judicially, it is open to the person to approach the President or the Gover nor, as the case may be, with a mercy petition. Some times person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter at tracting the jurisdiction of this Court, to consider the question of the execution of the 529 sentence. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delays in disposal of the mercy petitions or delay occurring at the instance of the Executive. So far as the scope of the authority of the President and the Governor while exercising jurisdiction under Article 72 and Article 16 1 are concerned the question is not at all relevant so far as the case in hand is concerned. But it must be observed that when such petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expedi tiously. It was also contended that when capital punishment is awarded the sentence awarded is only sentence of death but not sentence of death plus imprisonment and therefore if a condemned prisoner has to live in jail for long in substance it amounts to punishment which is sentence of death and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary to Article 20 and the imprisonment cannot be justified in law. Section 366 of the Code of Criminal Procedure provides: "366. Sentence of death to be submitted by Court of Session for confirmation (1) When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. (2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant. " This no doubt authorises the Court of Sessions to commit a person sentenced to death to jail custody under a warrant. But this Section does not contemplate how long he has to be in jail. Clause (1) of Section 366 provides that when the Court of Sessions passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. It is therefore apparent that sub clause (2) provided for committing the convicted person to jail awaiting the confir mation of the sentence by the High Court. It is also clear that when a person is committed to jail awaiting the execu tion of the sentence of death, it is not imprisonment but the prisoner has to be kept secured till the 530 sentence awarded by the court is executed and it appears that it is with that purpose in view that sub clause (2) of Section 366 simply provided for committing the convicted person to jail custody under a warrant. The question about solitary confinement or keeping the condemned prisoner alone under strict guard as provided in various jail manuals was considered by this Court in Sunil Batra vs Delhi Administration, ; and consid ering the question of solitary confinment it was observed: "In our opinion sub section (2) of section 30 does not empower the jail authorities in the garb of confining a prisoner under sentence of death, in a cell apart from all other prisoners, to impose solitary confinement on him. Even jail discipline inhibits solitary confinment as a measure of jail punishment. It completely negatives any suggestion that because a pris oner is under sentence of death therefore and by reason of that consideration alone, the jail authorities can impose upon him addition al and separate punishment of solitary con finement. They have no power to add to the punishment imposed by the Court which addi tional punishment could have been imposed by the Court itself but has in fact been not so imposed. Upon a true construction, sub section (2) S.30 does not empower a prison authority to impose solitary confinment upon a prisoner under sentence of death. " In the same judgment, it was further observed: "What then is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till the sentence becomes automatically executable? Section 366(2) of the Cr. P.C. enable the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting sub section (2) of S.366 is to make avail able the prisoner when the sentence is re quired to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sent 531 ence as and when that situation arises. After the sentence becomes executable he may be kept in cell apart from other prisoners with a day and night watch. But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company. If the prisoner under sentence of death is held in jail custody, punitive deten tion cannot be imposed upon him by jail au thorities except for prison offences. When a prisoner is committed under a warrant for jail custody under section 366(2) Cr. P.C. and if he is detained in solitary confinement which is a punishment prescribed by section 73 IPC, it will amount to imposing punishment for the same offence more than once which would be viola tive of Article 20(2). But as the prisoner is not to be kept in solitary confinement and the custody in which he is to be kept under section 30(2) as interpreted by us would preclude detention in solitary confinement, there is no chance of imposing second punishment upon him and therefore, section 30(2) is not violative of Article 20. " It is therefore clear that the prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) he is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded and in this view the aspect of solitary confinement has already been dealt with in the above noted case but it must be said that the life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence but it is also essen tial that he must be kept safe as the purpose of the jail custody is to make him available for execution after the sentence is finally confirmed. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to chal lenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar and Ors. vs State of Maharashtra and Anr. , ; and also in A.R. Antulay vs R.S. Nayak and 532 another; , the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circum stances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circum stances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. So far as our conclusions are concerned we had delivered our Order on October 11, 1988 and we had reserved the rea sons to be given later. Accordingly in the light of the discussions above our conclusion is as recorded in our Order dated October 11, 1988, reproduced below: "Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re open the conclusions reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordi nate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran 's case cannot be said to lay down the correct law and therefore to that extent stands overruled." 533 K. JAGANNATHA SHETTY, J In Bachan Singh vs State of punlab, , this Court pronounced that the provision of death penalty as an alternative punishment for murder, under sec.302 IPC is valid and constitutional. Sarkaria, J. who spoke for the majority view held that the provisions relating to imposition of death sentence and the procedure prescribed thereof would ensure fairness and reasonableness within the scope of Article 21. It was also observed that by no stretch of imagination it can be said that death penalty under sec. 302 either per se or because of execution by hanging constitutes an unreasonable, cruel or unusual punishment Nor the mode of its execution has a degrading punishment which would defile the "dignity of the individual ' within the preamble to the Constitution. The learned Judge, however, cautioned (at 751): "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law 's instrumentali ty. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionable foreclosed. " (Empha sis supplied) Bachan Singh case has thus narrowly tailored the sen tencing discretion of courts as to death sentence. Death sentence cannot be given if there is any mitigating circum stance in favour of the accused. All circumstances of the case should be aggravating. It is in the gravest of grave crimes or in the rarest of rare cases, the death sentence may be awarded. There is no offence in the penal code carry ing mandatory death penalty. Section 303 IPC carrying the mandatory punishment has been declared unconstitutional in Mithu vs State of Punjab, ; So much so, the death sentence is now awarded only in miniscule number of cases. All the accused in these cases belong to that limited and exceptional category. The trial court convicted them under sec. 302 IPC and sentenced them to death. The High Court confirmed their conviction and sentence. This Court dismissed their special leave petitions or appeals and subsequent review petitions. Their mercy petitions to the President and/or the Governor were also rejected. They have now moved writ petitions under Article 32 of the Constitu tion. They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it. Obvi ously, that they can not do. The judgment of the court has become final. Under Article 141, it shall be binding on all Courts. Under Article 142, it shall be enforceable through out the territory of India. Under Article 144 all authori ties, 534 civil and judicial, in the territory of India shall act in aid of this Court. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one 's fundamental right. The judgment of a court cannot be said to affect the fundamental rights of citizens (See Naresh Sridhar Mirajkar 's case, The petitioners, however, contend that this Court must set aside the death penalty and substitute a sentence of life imprisonment in view of the prolonged delay in the execution. The dehumanising factor prolonged delay with the mental torture in solitary confinement in jail, according to them, has rendered the execution unconstitutional under Article 21. There are also some other subsidiary contentions to which I will presently refer. We have earlier dismissed all but one petition giving our unanimous conclusion stating therein that we would give our reasons later. Here are my own reasons in support of that conclusion: The question whether prolonged delay renders death sentence inexecutable and entitles the accused to demand the alternate sentence of life imprisonment has arisen amid the diversity of judicial decisions in (i) T.V. Vaitheeswaran vs State of Tamil Nadu, ; (ii) Sher Singh vs State of Punjab; , ; and (iii) Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; Vaitheeswarn case was decided by a two Judge Bench, where Chinnappa Reddy, J. said (at 359): "We find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriv ing a person of his life in an unjust, unfair and unreasonable way as to offend the consti tutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death. " There then the learned Judge said (at 360): "Making all reasonable allowance for the time necessary for appeal and considera tion of reprieve, we think that delay exceed ing two years in the execution of a sentence of death should be considered sufficient to entitle the person 535 under sentence of death to invoke Article 21 and demand the quashing of the sentence of death." Sher Singh case was decided by a three Judge Bench. Chandrachud, CJ., who spoke for the Bench while disagreeing with above view in Vaitheeswaran, said (at 595): "The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula, as a matter of "quod erat demonstrandum." Then followed the decision in Javed Ahmad case. There Chinnappa Reddy, J. raised a question whether a three Judge Bench would overrule the decision of a two Judge Bench merely because three is larger than two? The learned Judge said: "The court sits in division of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to over rule the decision of a Division Bench of two Judges. Vide Young vs Bristol Aeroplane Co. Ltd. It may be otherwise where a full Bench does so. We do not, however, desire to embark upon this question in this case. In the present case. we are satisfied that an overall view of all the circumstances appears to us to entitle the petitioner to invoke the protec tion of Article 21 of the Constitution. We accordingly quash the sentence of death and substitute in its place the sentence of im prisonment for life. " The question posed in Javed Ahmad case relates to the practice and procedure of this Court. It presents little problem and could be conveniently disposed of without much controversy. At the time of flaming the Constitution, Mr. B.N. Rau, after his return from United States reported to the President of the Constitution Assembly as follows: "Again Justice, Frankfurter was very emphatic that any jurisdiction, exercisable by the Supreme Court, should be exercised by the full Court. His view is that the highest Court of appeal in the land should not sit in divi sions. Every Judge, except of course such judges as may be disqualified by personal interest or otherwise from hearing 536 particular cases, should share the responsi bility for every decision of the Court." (The Framing of India 's Constitution Vol. III by section Shiva Rao p. 219). This was a very good suggestion. But unfortunately that suggestion was not accepted and the principle which was dear to Justice Frankfurter was not incorporated in out Constitu tion. The result iS that each Judge does not share the responsibility for every decision of this Court. For a proper working arrangement in the Court, we have framed Rules under Article 145 of the Constitution confer ring power on the Chief Justice to constitute benches for disposal of cases. Order VII Rule (1) of the Supreme Court Rules 1966 provides that every cause, appeal or matter shall be heard by a Bench consisting of not less than two judges nominated by the Chief Justice. But this rule is subject to the requirement under Article 145(3) of the Constitution. Article 145(3) requires a minimum number of five judges for deciding any case involving substantial question of law as to interpretation of the Constitution. In any event, the Supreme Court has to sit in benches with judges distributed as the Chief Justice desires: In this context, Order VII Rule 2 of the Supreme Court Rules also needs to be noted. It provides: "Where in the course of the hearing of any cause, appeal or other proceeding, the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a bench for the hearing of it. " This is undoubtedly a salutory Rule, but it appears to have only a limited operation. It apparently governs the procedure of a smaller bench when it disagrees with the decision of a larger bench. The bench in the course of hearing of any matter considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice. The Chief Justice shall then consitute a larger bench for disposal of the matter. This exercise seems to be unnecessary when a larger bench considers that a decision of a smaller bench is incorrect unless a constitu tional question arises. The practice over the years has been that a larger bench straightaway considers the correctness of and if necessary overrules the view of a smaller bench. This practice has been held to be a crystallised rule of law in a recent decision by a 537 special bench of seven learned judges. In A.R. Antulay vs R.S. Nayak; , , Sabyasachi Mukharji, J., speaking for the majority said: "The principle that the size of the bench whether it is comprised of two or three or more judges does not matter, was enunciat ed in Young vs Bristol Aeroplace Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad A bdul Hamid Pawla vs State of Maharashtra, ; where it has been held that a Division Bench of two judges, has not been followed by our courts. XXXX XXXX XXXX XXXX XXXX "The law laid down by this Court is some what different. There is a hierarchy within the court itself here where larger benches over rule smaller benches. See Mattulal vs Radhey Lal, [1975] 1 SCR 127: ; ; Union of India vs K.S. Subramanian ; at 92: ; at 2437 and State of U.P.v. Ram Chandra Trivedi; , at 473: ; at 2555. This is the practice followed by this Court and now in is a crystallised rule of law. " The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. We must regard this as a final seal to the controversy. Before grappling with the crucial issue that has been raised in these petitions, it would be convenient to dispose of what may be regarded as peripheral submissions. Mr. R.K. Jain, learned counsel who led the arguments on behalf of the petitioners referred to us in detail the consideration of justice, morality and usefulness of capital punishment. The counsel also referred to us the opinion expressed by eminent persons like Shri Arvindo (Tales of Prison Life) with regard to torment in the prison life. He also invited our attention to the dissenting opinion of Bhagwati, J., in Bachan Singh where learned Judge observed that the execution "serves no social purpose." The learned counsel made an impassioned appeal to save the life of these condemned persons by sub stituting life imprisonment on the ground of inordinate delay in execution. I can really appreciate the compassion ate feeling with which the counsel made his submission. The "self" in 538 him came out with every word he uttered. He seems to belong to a faith where 'non violence ' to every life is a must. Not that we are different underneath the rotes. As said by Justice Brennan, white dealing with his opinion in Furman vs Georgia. ; "I am not, that we are each not, a human being with personal views and moral sensioilties and religious scruples. But it is to say that above all, 1 am a Judge". (The Oliver wendell Homes Lecture, delivered in September 5, 1986). We are flesh and blood mortals with normal human traits. Indeed, like all others, we too have some inborn aversions and acquired attractions. But it is not for us while presiding over courts to decide what pun ishment or philosophy is good for our people. While examin ing constitutional questions, we must never forget Mar shall 's mighty phrase "that it is a constitution that we are expounding". We are oath bound to protect the Constitution. We are duty bound to safeguard the life and liberties of persons. We must enforce the constitutional commands, no matter what the problem. In other issues of constitutional considerations, we must understand the aspirations and convictions of men and women of our time. And we should not be swayed by our own convictions. We must never allow our individuality t0 overshadow or supersede the philosophy of the Constitution. These are various philosophical ideologies and underpin nings about the purposes of punishment. It includes among others deterfence, retribution, protecting persons, punish ing guilty and acquitting the innocent. Among these objec tives deterfence and retribution are prominent. Retribution is often confused with revenge, but there are distinct differences. Retribution embodies the concept that an of fender should receive what he rightfully deserves. Deter fence has a two fold object. The first object relates to specific deterrence. It will deter the individual from committing the same or other offences in the future. The second object is as to general deterrence. It will convince or deter others that "crime does not pay") (See Crime and Punishment ' by Harry E. Allen & Ors. at 735). The Law Commission of India summarised these aspects as to the capital sentence (35th report para 265( 18)): "The fact remains however, that whenever there is a serious crime. the society feels a sense of disapprobation. If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolu tion of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law 539 does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment the law helps the element of retribution merge into the element of deterrence. " Sarkaria, J., after referring to this report speaking for the majority in Bachan Singh, [19801 2 SCC 684 at 721 recognises: "Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one. " The punishments are provided in order to deter crimes. The punishments are imposed to make the threat credible. Threats and imposition of punishments are obviously necessary to deter crimes. As a venerated British Historian, Arthur Bryant writes "The sole justification for the death penalty is not to punish murderers but to prevent murder." Professor Earnest Van Den Haag states: "The murderer learns through his punishment that his fellow men have found him unworthy of living, that because he has mur dered, he is being expelled from the community of the living. This degradation is self in flicted. By murdering, the murderer has so dehumanised himself that he cannot remain among the living. The social recognition of his self degradation is the punitive essence of execution. " (See Harward Law Review: 1986 Vol. 99 p. 1699). Of course, one cannot have any empirical data to prove that capital punishment can be deterrent greater than life imprisonment. It may be that most killers as the Professor Jack Greenberg states "do not engage in anything like a cost benefit analysis. They are impulsive and they kill impulsively. " The paradigm of this kind of murderers cannot be properly accounted for. However, many classic experiments on the effects of corporal punishments on dogs, monkeys, pigeons and other animals have been conducted in psychology laboratories. Graeme Newman in his book "Just and Painful" (at 127) refers to such experiments. The learned author states that corporal punishment works and it has been so successful that some animals have starved themselves to death rather than eat the forbidden food. This position with the human beings is said to be not different. Indeed, it cannot be different as we could see from day to day life. As between life and 540 death one lives life. It is the love of life with sensuous joy of companionship that moves the race and not so much the ideals. One views the death with trepidation. In fact, every living being dreads death and it cannot be an exception with those on death row. They like all others want to live and live as long as they can. Because, the life has its own attraction, no matter in what form and condition. The death has no such attraction and cannot have any, since it is the most mysterious of all in this world. The criminal law always keeps pace with the development of society. It reflects as Chief Justice Warren said: "the evolving standards of decency that mark the progress of a maturing society". (Trop. vs Dulles; , , 101 (1958). We have much to learn from history of every country. The punishment which meets the unanimous approval in one generation, may rank as the most reprehensible form of cruelty in the next. Take for instance, the punishment of whipping. A search of historical records of 16th century England shows that men and women were whipped unmercifully for trivial offences as peddling, being drunk on a Sunday, and participating in a riot. Many other instances of ferocious whippings of men and women, both for political and other offences, besprinkle and blacken English historical records. Rarely did any shred of excuse for human frailty seem to enter into the souls of those sitting in judgment. In the days of Charles the Sec ond, however, the Duke of York did interpose in one such case he saved Lady Sophia Lindsay from being publicly whipped through the streets of Edinburgh for the crime of assisting at the escape of the Earl of Argyle, her own father in law. In the early eighteen hundreds the Australian penal settlements were the scene of floggings of so severe a nature as to rival, for sheer savagery, the worst that were inflicted in England during the sixteenth century, or in the southern State of America during the days of slavery. In the United States of America whipping was a favorite seven teenth century punishment for various offences, and both male and female culprits came under the lash. Of all the civilized, nations, Russia may be considered to be the one which not only used the whip unmercifully, but also as the nation which continued to use it longer by far and for a greater variety of crimes than did any other. Next to Rus sia, for sheer love of whipping, comes China, and little less formidable than the Russian known is the Chinese rod of split bamboo. The sharp edges of the bamboo cut into the flesh, inflicting terrible lacera 541 tions. Little wonder that deaths, as a result of these floggings, have been frequent, and that those who escape this fate are often so terribly mutilated that they remain crippled for the rest of their lives (The History of corpo ral Punishment by G.R. Scott (1948) pages 39 to 56). Take the history of punishment of death in England. In 1810 Sir Samuel Romilly who asked the Parliament to abolish the death penalty for some of crimes said "there is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as in England". (A History of English Criminal Law By L. Radzinowicz V(1) p(1). The beginning of the nineteenth century was a period of indiscriminate imposition of capital punishment in England for numerous widely differing offences. There were two hundred or more such offences. There were several legisla tions providing punishment of death in the reign of George IV. All felonies except petty larceny and mayhem were theo retically punishable with death. From 1827 to 1841 several legislations were passed abolishing the punishment of death in a variety of cases. Burning continued till 1790 to be the punishment inflicted on women for treason, high or petty. (Which latter included not only the murder by a wife of her husband, and the murder of a master or mistress by a servant but also several offences against the coin). Burning in such cases was abolished by 30 Geo, 3, c. 48. In practice, women were strangled before they were burnt; this, however, de pended on the executioner. In one notorious case a woman was actually burnt alive for murdering her husband, the execu tioner being afraid to strangle her because he was caught by the fire. In the reign of George II, an act was passed which was intended to make the punishment for murder more severe than the punishment for other capital crimes. This was 25 Geo. 2, c. 37, which provided that a person convicted of murder should be executed on the next day but one after his sentence (unless he was tried on a Friday, in which case he was to be hanged on the Monday). He was to be fed on bread and water in the interval and his body, after death, was either to be dissected or to be hung in chains. The judge, however, had power to respite or to remit these special severities. Under this act murderers were usually anato mized, but sometimes gibbeted. By the 2 & 3 Will 4, c. 7 section 16 (for the regulation of schools of anatomy), it was enact ed that the bodies of murderers should no longer be anato mized, but that the sentence should direct that they should either be hung in chains or a buried in the prison. Several persons were gibbeted under this act. 542 These provisions distinguish English law in a marked manner from the continental laws down to the end of the last cen tury. In most parts of the continent breaking on the wheel, burning in some cases quartering alive and tearing with red hot pincers, were in use, as well as simpler forms of death. (History of the Criminal Law of England by Stephen Ch. XIII p. 477 478). Through out the reign of Henry the Eighth, there were no fewer than two thousand executions a year. As the stress on the value of property increased, the net was widened. Not alone murderers and traitors; but robbers, coiners, heretics and witches were sent to their death. The shooting of a rabbit; the forgery of a birth certificate; the theft of a pocket handkerchief; the adoption of a disguise; the damag ing of a public property were also included in the list of death sentence. In 1814 a man was hanged at Chelmsford for cutting down a cherry tree. The public hangings in England continued until well into the nineteenth century. There were public executions with a large number of people watching. On January 22, 1829, Willi an Burke was hanged at Edinburgh, and the crowd was great beyond all former precedent. The last person to be hanged publicly in England was Michael Marett, who was executed at Newgate on May 26, 1868. As time went past, the list of death sentence crimes was rapidly reduced and in 1950, it was confined for four crimes only, to wit; (1) murder, (2) treason, (3) piracy with violence, and (4) setting fire to arsenals and dockyards. Later this was also abolished. G.R. Scott, The History of Capital Punishment, 38 66 (1950). What happened in the United States? It will be noticed that in the United States, the accused has a constitutional right to be tried by a Jury, as provided under 6th Amend ment. The accused has a right not to be subjected to "cruel and unusual punishment" as mandated under 8th Amendment. In Furman, some Judges took the view that death sentence was unacceptable to the evolving standards of decency of the American people. But the American people rejected that view. Since then 35 States have re enacted laws providing for the death sentence for murder of suitably altering the provi sions to comply with Furman. What do we have here? The representatives of our people are cognizant of the contemporary social needs. The legisla tive amendments brought about from time to time are indica tive of their awareness. Sub sec. (5) of sec. 367 of the Code of the Criminal Procedure, 543 1898 as it stood prior to its amendment by Act 25 of 1955 provided: "If the accused is convicted of an offence punishable with death, and the court sentences to any punishment other than death, the court shall in its judgment state the reasons why sentence of death was not passed. " This provision laid down that if an accused was convict ed of an offence punishable with death, the imposition of death sentence was the rule and the awarding of a lesser sentence was an exception. The court had to state the rea sons for not passing the sentence of death. There was a change by the amending Act 26 of 1955 which came into force with effect from January 1, 1956. The above sub section was deleted and it was left to the discretion of the court in each case to pass a sentence of death or life imprisonment. In 1973 there was again a reshaping of the provision regard ing the death penalty. In the Code of Criminal Procedure, 1973, sec. 354(3) was inserted in these terms: "When the conviction is for an offence punishable with death, or in the alternative with the imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons for such sentence. " It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder. The court cannot award death sentence without giving special reasons. As earlier noticed that death sentence Could be awarded only in exceptional cases and not in the usual run of murders. We have got just six offences carrying death penalty and that too as an alternate sentence (Sections 120B, 121, 132, 302,307 and 396 IPC). This is the need and notion of the present day society. Tomorrow 's society and the atmosphere in which they live may be quite different. They may not have rapist murderers like Ranga and Billa. They may not have any merciless killing and bride burning They may have more respect for each other life. They may be free from criminalisation of politics and elimination of political leaders by muscle power. There then the penal law cannot remain isolated and untouched. It will be profoundly influenced by philosophy prevailing. Time may reach for the representatives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unnecessary. There is 544 nothing in our Constitution to preclude them from deleting that alternate sentence. The crusade against capital punish ment may,, therefore, go on elsewhere and not in this Court. Let me now turn to the pivotal question which I have referred at the beginning of the judgment. The question is whether the sentence of life imprisonment should be substi tuted on account of time factor alone, however, right and valid and death sentence was at the time when it was award ed. The arguments for the petitioners primarily rested on the common area of agreement in Vaitheeswaran and Sher Singh cases on the implication of Article 21. The accepted princi ple according to counsel, is that prolonged delay in execu tion would be "unjust, unfair and unreasonable". It would be inhuman and dehumanising to keep the condemned person for a long period. It offends the constitutional safeguards under Article 21. Article 21 of the Constitution mandates the state that no person shah be deprived of his life or personal liberty except according to the procedure established by law. The scope and content of this Article has been the subject matter of intensive examination in the recent decisions of this Court. I do not want to add to the length of this judg ment by recapitulating all those decisions in detail. I may only highlight some of the observations which are relevant to the present case. In Maneka Gandhi vs Union of India, [1978] 1 SCC 248 this Court gave a new dimension to Article 21. The seven Judge bench held that a statute which merely prescribes some kind of procedure for depriving a person of his life or personal liberty cannot meet the requirements of Article 21. Bhagwati, J., as he then was, while explaining the nature and requirement of procedure under Article 21 observed (at 283): "We must reiterate here what was pointed out by the majority in E.P. Rayappa vs State of Tamil Nadu, [1974] 3. SCR 348: , namely, that from a posi tivistic point of view, equally is antithetic to arbitrariness. In fact equality and arbi trariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both accord ing to political logic and constitutional law and is, therefore, violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which 545 legally as well as philosophically, is an essential element of equality or non arbi trariness pervades Article 14 like a brooding omni presence and the procedure contemplated by Article 21 must answer the test of reasona bleness in order to be in conformity .with Article 14. It must be "right and just and fair" and not "arbitrary, fanciful or oppres sive", otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. " If one prefers to go yet further back, the procedural fairness in the defence of liberties was insisted upon even in 1952. The State of West Bengal vs Anwar Ali, ; Bose, J., remarked (at 367): "The question with which I charge myself, is, can fair minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equa nimity and call it reasonable, just and fair, regard it as that ' equal treatment and protection in the defence of liberties which is expected of a sovereign democratic repub lic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad. " In Bachan Singh case, Sarkaria, J., affirming this view said (at 730): "No person shall be deprived of his life br personal liberty except according to fair, just and reasonable procedure estab lished by valid law." In Mithu vs State of Punjab, ; Chandra chud. C.J., said (at 284): " . that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is the for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable." In Sher Singh vs State of Punjab, [1983] 2 SCC 582 Chandrachud, C.J. again explained (at 593): 546 "The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endea vour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the impo sition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable." Article 21 thus received a creative connotation. It demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. The procedural fairness is required to be observed at every stage and till the last breath of the life. In Vaitheeswaran the court thought that the delay of two years would make it unreasonable under Article 21 to execute death sentence. The court did not attach importance to the cause of delay. The Cause of delay was immaterial. The accused himself may be responsible for the delay. The court said that the appropriate relief would be to vacate the death sentence and substitute life imprisonment instead. The learned counsel for the petitioners argued that if two years period of delay set out in Vaitheeswaran does not present favourably, we may fix any other period but we should not disturb the basis of the decision. He invited our attention to a number of authorities where courts have awarded life imprisonment on the ground of delay in disposal of cases. In Vivian Rodrick vs The State of West Bengal, ; six years delay was considered sufficient for impos ing a lesser sentence of imprisonment for life. In State of U.P. vs Paras Nath Singh & Ors., , the Court, while reversing the order of acquittal awarded life imprisonment on the ground that the accused was under sen tence of death till he was acquitted by the High Court. Similar was the view taken in State of Bihar vs Pashupati Singh, ; ; State of U.P. vs Suresh, at 643 and State of U.P. vs Sahai, In State of U.P.v. Suresh, the accused was given life imprisonment in view of the fact that seven years had elapsed after the date of murder. In Ram Adhar vs State of U.P., at 777, the 547 delay of six years from the date of occurrence was held sufficient to commute the sentence of death to life impris onment. The court also observed that the accused was not responsible in any manner for the lapse of time that has occurred. In Nethi Sreeramulu vs State of A. P., 14 the Court while disposing of the appeal in 1973 commuted the sentence of death given in 1971 to life imprisonment. In State of U.P.v. Lalla Singh & Ors., six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence. In Sadhu Singh vs State of U.P., about three years and seven months during which the accused was under spectre of death sentence, was one of the relevant factors to reduce the sentence to life imprisonment. There are equally other decisions where in spite of the delay in disposal of the case, the Court has awarded the death sentence. In Nachhittar Singh vs State of Punjab, , the court refused to consider the question of delay as a mitigating circumstances. In Maghar Sing vs State of Punjab, [19751 4 SCC 234, the court said that delay does not appear to be good ground to commute to life impris onment in view of the pre planned, cold blooded and dastard ly murder committed by the accused. In Lajar Mashi vs State of U.P., , the court while confirming the death sentence observed (at 809): "The value of such delay as a miti gating factor depends upon the features of a particular case. It cannot be divorced from the diabolical circumstances of the crime itself, which, in the instant case fully justify the award of capital sentence for the murder of the deceased. We, therefore, uphold the award of the capital sentence to the appellant and dismiss his appeal. " All these decisions are of little use to determine the constitutionality of execution of the death sentence on the relevance of delay. These decisions relate to the sentencing discretion of courts with which we are not concerned. We are concerned with the right of the accused to demand life imprisonment after the final verdict of death sentence with every justification to impose it. The demand for life imprisonment herein as solely based on the ground of prolonged delay in the execution. The delay which is sought 548 tO be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceed ings. It is the time that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency. I start with the first part of the delay. In Vaitheeswa ran this part of the delay was expressly taken into consid eration. It was observed that the period of two years as prolonged detention would include the time necessary for appeal from the sentence of death and consideration of reprieve. In Sher Singh, this period has not been accepted as good measure. The court said that the fixation of time limit of two years did not accord with the common experience of time normally consumed by the litigative process and the proceedings before the Government. Mr. Parasaran, learned Attorney General has altogether a different approach and in my opinion very rightly. He argued that the time spent by the courts in judicial proceedings was intended to ensure a fair trial to the accused and cannot be relied upon by the same accused to impeach the execution of the death sentence. The relevant provisions in the Indian Penal Code, the Criminal Procedure Code, the Evidence Act and the Rules made by the High Courts and the Supreme Court governing the trial, appeal, execution of sentence, etc., were all highlighted. According to learned Attorney, these provisions are meant to examine the guilt or innocence of the accused and to have an appropriate sentence commensurate with the gravity of the crime. They constitute reasonable procedure, established by law. I entirely agree. The time taken in the judicial pro ceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while dispos ing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into ac count every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment 549 with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be, in my opinion, wholly inappro priate to fall back upon the same delay to impeach the execution. If the delay in passing the sentence render the execu tion unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fair ness in procedure under Article 21. With respect, I, am unable to agree with the view taken in Vatheeswaram case on this aspect. Under Article 72 of the Constitution, the President shall have the power to "grant pardons, deprives, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted in an offence". Under Article 161 of the Constitution, similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions sub mitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for .disposal Of even for mercy petitions. It is, however, necessary to point out that Article 21 is relevant at all stages. This Court has emphasized that "the speedy trial in criminal cases though not a specific fundamental right, is implicit in the broad sweep and con tent of Article 21". (See: Hussainara Khatoon vs The State of Bihar, [1979] 3 SCR 169 and ; Speedy trial is a part of one 's fundamental right to life and liberty. (See Kadra Pahadiya vs State of Bihar, and This principle, in my opinion, is no less important for disposal of mercy petition. It has been uni versally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra vs Delhi Administration, , but nobody could succeed in giving him peace of mind. 550 Chita Chinta Dwayoormadhya, Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati Sajeevakam. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire bums only the dead body while the mental worry burns the living One. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned pris oner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed. What should be done by the Court is the next point for consideration. It is necessary to emphasise that the juris diction of the Court at this stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expedi tiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. The Court has still to consider as observed in Sher Singh case (at 596): "The nature of the offence, the diverse circum stances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of 551 the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. " The last contention urged for the petitioners that the accused should not be executed if he was since improved is unavailable since it seeks to substitute a new procedure which the Code does not provide for. We have already considered all these cases in the light of these principles and disposed them of by our earlier unanimous order.

The accused were convicted under section 302 I.P.C. and sentenced to death by the trial court. The High Court con firmed their conviction and 510 sentence. This Court dismissed their special leave peti tions/appeals and subsequent review petitions. Their mercy petitions to the President and/ or Governor were also re jected. Therefore, they approached this Court by way of Writ Petitions for setting aside the death sentence and substi tuting it by a sentence of life imprisonment on the ground of prolonged delay in the execution. They contended that the dehumanising factor of prolonged delay with the mental torture in confinement in jail had rendered the execution unconstitutional. In view of the conflicting decisions of this Court in T.V. Vaitheeswaran vs State of Tamil Nadu, and Sher Singh & Ors. vs The State of Punjab, ; and observations in Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra; , on the question of delay, the writ petitions were referred to a five judges Bench. While a Bench of two Judges held in Vaitheeswaran 's case that two years delay in execution of the sentence after the judgment of the trial court would entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life, a three Judges ' Bench held, in Sher Singh 's case, that delay alone is not good enough for commu tation and two year 's rule could not be laid down in the cases of delay and that the Court in the context of the nature of the offence and delay, could consider the question of commutation of death sentence. In Javed 's case this Court observed that where the condemned man had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind, would entitle him for commuta tion of sentence of death into imprisonment for life. The questions for consideration in these cases were: (a) whether prolonged delay in execution of the sentence of death rendered it inexecutable and entitled the accused to demand the alternate sentence of imprisonment for life, (b) what should be the starting point for computing this delay, (c) what were the rights of a condemned prisoner who had been sentenced to death but not executed, and (d) what could be the circumstances which should be considered along with the time that had been taken before the sentence is execut ed. On October 11, 1988 this Court dismissed all the writ petitions, except Writ Petition No. 1566 of 1985, which was partly allowed and the sentence of death awarded to the accused was substituted by the sen 511 tence of imprisonment. Over ruling the decision in Vaithees warans case that two years ' delay would make the sentence of death inexecutable, this Court held that undue long delay in execution of the sentence of death would entitle the condem ned person to approach this Court under Article 32 but this Court would only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and would have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death, that this Court, might consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of the sentence should be carried out or should be altered into imprisonment for life and that no fixed period of delay would be held to make the sentence of death inexe cutable. Reasons for the judgment were to follow. Giving the reasons for the Judgment, HELD: Majority: Oza, Murari Mohon Dutt, Singh and Sharma JJ. Per Oza, J: 1.1 The delay which could be considered while consider ing the question of commutation of sentence of death into one of life imprisonment could only be from .the date the judgment by the apex Court is pronounced i.e when the judi cial process has come to an end. [528E F] 1.2 The condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court. All the delay upto the final judicial process is taken care of while the judgment is finally pronounced, and in a number of cases the time that has elapsed from the date of offence till the final decision, has weighed with the courts and lesser sentence awarded only on this account. [526E, H; 527A] State of Uttar Pradesh vs Lalla Singh and others, ; Sadhu Singh vs State of U.P., AIR 1978 SC 1506; State of U.P.v. Sahai, AIR 1981 SC 1442 and Joseph Peter vs State of Goa, Daman & Diu, ; , referred to. Piare Dusadh and others vs The King Emperor, [1944] Federal Court Reports 61, referred to. 1.3 Practically, in all the High Courts a confirmation case i.e. a 512 case where the sentence of death is awarded by the Sessions Court and is pending in the High Court for confirmation in the High Court a time bound programme is provided in the rules and, except on some rare occasions, the High Court has disposed of a confirmation case between six months to one year. At the Sessions level also, the normal procedure of the sessions trial is that it is taken up day today and it is expected that such a sessions case should be given top priority and it is expected that such trials must continue day to day till it is concluded. Even in this Court, al though there is no specific rule, normally these matters are given top priority, and ordinarily, it is expected that these matters will be given top priority and shall be heard and disposed of as expeditiously as possible. Therefore, as long as the matter is pending in any Court before any final adjudication, even the person who has been condemned or sentenced to death has a ray of hope. Therefore, it could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms day. [527G H; 528C E] 1.4 After the matter is finally decided judicially, it is open to the person to approach the President or the Governor as the case may be with a mercy petition. It is no doubt true that sometimes such mercy petition and review petitions are filed repeatedly causing delay, but a legiti mate remedy if available in law, a person is entitled to seek it and it would, therefore, be proper that if there has been undue and prolonged delay, that alone will be a matter attracting the jurisdiction of this Court, to consider the question of execution of the sentence. However, while con sidering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of convicted person himself shall not be considered. [528F, G; 529A] 1.5 The only delay which would be material for consider ation will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive. [529B] 1.6 When petitions under article 72 or 161 are received by the authorities concerned, it is expected that these peti tions shall be disposed of expeditiously. [529C] T.V. Vaitheeswaran vs State of Tamil Nadu, , over ruled. Sher Singh & Others vs The State of Punjab, ; , affirmed. 513 Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; , referred to. 2.1 A judgment of the Court can never be challenged under article 14 or 21 and, therefore, the judgment of the court awarding the sentence of death is not open to chal lenge as violating article 14 or 21. [531G H] Naresh Shridhar Mirajkar and Ors. vs State of Maharash tra and Anr. ; , and A.R. Antulay vs R.S. Nayak and another; , , relied on. 2.2 The only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judi cial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court. [532A B] 2.3 It will not be open to this Court in exercise of jurisdiction under article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circum stances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. [532B D] 2.4 The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. [532D] 3.1 Before 1955, sentence of death was the rule, the alternative sentence had to be explained by reasons. There after, it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except that for the special reasons to be recorded sentence of death could be passed. This indicates a trend against sentence of death but this coupled with the decisions wherein sentence of death has been accepted as constitu 514 tional, show that although there is a shift from sentence of death to lesser sentence, there is a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases. Therefore, in spite of the divergent trends in the various parts of the world there is a consist ent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty. It is awarded in the rarest of rare cases and this is the accepted position of law. [524B D] Bachan Singh etc. vs State of Punjab etc. ; , and Machhi Singh and others vs State of Punjab, referred to. 3.2 The circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and the Legislature was, there fore, right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof. [525H; 526A B] 4. The prisoner, who is sentenced and kept in jail custody under a warrant under section 366(2) of the Criminal Procedure Code is neither suffering rigorous imprisonment nor simple imprisonment. In substance, he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded. Hence this will not amount to double jeopardy. [53 1E] The life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence, and it is essential that he must be kept safe. [531F] Sunil Batra vs Delhi Administration, ; re ferred to. Per Jagannatha Shetty, J (Concurring): 5. Article 21 demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till the last breath of the life. [546C] 515 Maneka Gandhi vs Union of India, [1978] 1 SCC 248; The State of West Bengal vs Anwar Ali, ; ; Bachan Singh vs State of Punjab ; Mithu vs State of Punjab, ; and Sher Singh vs State of Punjab, [1983] 2 SCC 582, relied on. 6.1 The delay which is sought to be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceedings. It is the time that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency. [547H; 548A B] 6.2 The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sen tencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence, save by way of review. [548F H] 6.3 There cannot be a second trial on the validity of sentence based on article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it fails to be executed in accordance with law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be wholly inap propriate to fail back upon the same delay to impeach the execution. [548H; 549A B] 6.4 If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional Much less any fixed period of delay could be held to make the sentence inexe cutable. It would be arbitrary to fix any period of limita tion for execution on the ground that it would be a denial of fairness in procedure under Article 21. [549B C] T.V. Vaitheeswaran vs State of Tamil Nadu, , over ruled. 516 6.5 The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for disposal of even mercy petitions. However, Article 21 is relevant at all stages, and the principle that speedy trial is a part of one 's fundamental right to life and liberty is no less important for disposal of mercy petition. [549E F] Hussainara Khatoon vs The State of Bihar, [1979] 3 SCR 169 and ; and Kadra Pahadiya vs State of Bihar, and relied on. 6.6 It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison. But nobody could succeed in giving him peace of mind. [549G H] Sunil Batra vs Delhi Administration, ; re ferred to. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned pris oner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed. [550C] 6.7 The jurisdiction of the Court at this stage, is extremely limited. The Court, while examining the matter, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under article 226 or under article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. Though the inordinate delay may be a significant factor, but that by itself cannot render the execution uncon 517 stitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. [550D G] T.V. Vaitheeswaran vs State of Tamil Nadu, over ruled. Sher Singh vs State of Punjab, ; affirmed. Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; ; Vivian Rodrick vs The State of West Bengal, ; ; State of U.P. vs Paras Nath Singh & Ors., ; Bihar vs Pashupati Singh, ; ; State of U.P. vs Suresh, at 643; State ofU. P. vs Sahai, ; Ram Adhar vs State of U.P., at 777; State of U.P. vs Lalla Singh ; Nachhittar Singh vs State of Punjab, ; Maghar Singh vs State of Punjab, ; Lajar Mashi vs State of U.P., ; Hussainara Khatoon vs The State of Bihar, [1979] 3 SCR 169 and ; and Kadra Pahadiya vs State of Bihar, and referred to. 6.8 If the Court wants to have a look at the grievance as to delay then there should not be any delay either in listing or in disposal of the matter. The person who com plaints about the delay in the execution should not be put to further delay. The matter, therefore, must be expedi tiously and on top priority basis, disposed of. [550D E] 6.9 The contention that the accused should not be exe cuted if he has since improved is unavailable, since it seeks to substitute a new procedure which the Code does not provide for. [551B] 7. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one 's fundamental right. The judgment of a court cannot be said to affect the fundamental rights of citizens. [534A B] Naresh Sridhar Mirajkar, relied on. It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder. The court cannot award death sentence without giving special reasons and only in exceptional cases and not in the usual run of murders. There are just six offences carrying death penalty and that too as an alternate sentence. [543E F] 518 9. The criminal law always keeps pace with the develop ment of society. The punishment which meets the unanimous approval in one generation, may rank as the most reprehensi ble form of cruelty in the next. The representatives of the people are cognizant of the contemporary social needs. The legislative amendments brought about from time to time are indicative of their awareness. The penal law cannot remain isolated and untouched. It will be profoundly influenced by philosophy prevailing. Time may reach for the representa tives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unneces sary. There is nothing in our Constitution to preclude them from deleting that alternate sentence. [540C; 542H; 543H; 544A] Bachan Singh vs State of Punjab, and Mithu vs State of Punjab, ; , referred to. The practice prevailing over the years had been that a larger bench straightaway considers the correctness of and, if necessary, overrules the view of a smaller bench. This practice has been held to be the crystallised rule of law in a recent decision by a special bench of seven judges of this Court. This must be regarded as a final seal to the controversy, and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. [536H; 537E] A.R. Antulay vs R.S. Nayak, AIR 2988 SC 1532, followed.

Criminal Appeal No. 385 of 1991. From the Judgment and Order dated 18.4.1988 of the Andhra Pradesh High Court in Crl. Revision Petition No. 41 of 1987. M.C. Bhandare and Ms. C.K. Sucharita for the Appellants. C.N. Sreekumar and G. Prabhakar (for the State) for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties. The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit of St. Louis Country Missouri, USA. The 1st respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the 1st respondent. 826 2. The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub Court of Tirupati being O.P. No. 87/86. In that petition, the 1st appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1991 the learned sub Judge of Tirupati dismissed the petition. On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta, 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. It is not necessary to refer to the details of the proceedings in the said complaint. Suffice it to say that in that complaint, the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by Missouri Court. By this judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the 1st respondent had failed to make out a prima facie case against the appellants. Against the said decision, the 1st respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision of April 18, 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The Court further held that since the learned Magistrate acted on the photostat copy, he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this decision that the present appeal is filed. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis Country Missouri, USA. In the first instance, the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken ' '. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court. From the record, it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows: ``without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon 'ble court, this respondent sub 827 mits as follows ' '. She had also stated in the replies, among other things, that (i) the petition was not maintainable, (ii) she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court, (iii) the parties were Hindus and governed by Hindu Law, (iv) she was an Indian citizen and was not governed by laws in force in the State of Missouri and , therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the and that it could not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the . Fourthly, it is not disputed that the 1st respondent was neither present nor represented in the Court passed the decree in her absence. In fact, the Court has in terms observed that it had no jurisdiction ``in personam ' ' over the respondent or minor child which was born out of the wed lock and both of them had domiciled in India. Fifthly, in the petition which was filed by the 1st appellant in that Court on October 6, 1980, besides alleging that he had been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd Timber View Road, Kukwapood, in the Country of St. Louis, Missouri, he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with the appellant in the United States and particularly in the State of Missouri. On the other hand, the averments made by him in his petition filed in the court of the Subordinate Judge, Tirupati in 1978 shows that he was a resident of Apartment No. 414, 6440, South Claiborn Avenue, New Orleans, Louisiana, United States and that he was a citizen of India. He had given for the service of all notices and processes in the petition, the address of his counsel Shri PR Ramachandra Rao, Advocate, 16 11 1/3, Malakpet, Hyderabad 500 036. Even according to his averments in the said petition, the 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage. Thereafter she had gone to her parental house at Relangi, Tanuka Taluk, West Godawari District. He was, thereafter, sponsored by his friend Prasad for a placement in the medical service in the United States and had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be emp 828 loyed. Again according to the averments in the said petition, when the 1st respondent joined him in the United States, both of them had stayed together as husband and wife at New Orleans. The 1st respondent left his residence in New Orleans and went first to Jackson, Texas and, thereafter, to Chicago to stay at the residence of his friend, Prasad. Thereafter she left Chicago for India. Thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at New Orleans, Louisiana and never within the jurisdiction of the Circuit Court of St. Louis Country in the State of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect. Under the provisions of the (hereinafter referred to as the ``Act ' ') only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act. Under Section 13 of the Code of Civil Procedure 1908 (hereinafter referred to as the ``Code ' '), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India. As pointed out above, the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last 829 resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage. What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant has further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, as pointed out earlier, he has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been. In the absence of the rules of jurisdiction of that court, we are not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment. Relying on a decision of this Court in Smt. Satya vs Teja Singh, it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. The larger question that we would like to address ourselves to is whether even in such cases, the Courts in this country should recognise the foreign divorce decrees. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of 830 children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons, (b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe 831 rent communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. 832 12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression ``competent court ' ' in Section 41 of the has also to be construed likewise. Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable 833 to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the 834 courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self evident. However, in view of the decision of this Court in Smt. Satya vs Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife 's domicile follows that of her husband and that it is the husband 's domicilliary law which determines the jurisdiction and judges the merits of the case. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case 835 is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable. The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74(1)(iii) of the (Hereinater referred to as the "Act") documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification. Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the Photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression "certified copy" of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act. While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court, we uphold the order of the High Court also on a more substantial and larger ground as stated in paragraph 14 above. Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old. T.N.A. Appeal dismissed.

The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant husband filed a petition for dissolution of the marriage in the Sub Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya vs Teja Singh, , referred to. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G]

Civil Appeal No. 2463 of 1982. From the Judgment and order dated 31. 1981 of the Orissa High Court in First Appeal No. 184 of 1977. Veenu Bhagat for the Appellants. A.P. Mohanty and A.K. Mahapatra for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The appellants filed a suit for partition of the properties detailed in the plaint claiming 1/3rd share. A preliminary decree was passed by the trial court which was challenged by the defendant No. 9 (original respondent No. 1 in the present appeal) before the Orissa High Court in First appeal No. 184 of 1972. The appeal was disposed of on compromise whereby the plaintiffs ' claim to 1/3rd share was accepted as correct. The terms of the compromise are set out in paragraph 2 of the order dated 27.3.79. It was, however, further agreed that half of the share of the plaintiffs, i.e. 1/6th share, would go to the defendant No. 9 provided he paid a sum of Rs.40,000 290 to the plaintiffs by a particular date, failing payment within time, the decree passed by the trial court would stand confirmed as per term of the compromise. The compromise was recorded on 27.3.1979. According to the compromise the sum of Rs.40,000 was to be paid in two instalments; the first instalment of Rs.10,000 by 31 7 1979 and the remaining amount of Rs.30,000 by 28.2.1980. The first instalment was paid within time but the remaining amount was not paid. In the meantime, the decree by the High Court was formally drawn up on 6.9.1979. In view of the default in payment of the second instalment the plaintiffs appellants deposited the sum of Rs. 10,000 received by them as the first instalment to the credit of the defendant No. 9 with the permission of the Court. The defendant No. 9, thereafter, made an application before the High Court on 28.8.1981 for extension of the period for payment of the second instalment of Rs.30,000. The application was allowed by the order dated 31.8.1981 which is under challenge in the present appeal. Before proceeding to the points involved in the present appeal it will be useful to briefly state the facts. The parties are close relations, the defendant No. 9 (original respondent No. 1) being the uncle of the plaintiffs appellants. He died during the pendency of the appeal here and his heirs and legal representatives have been substituted as respondents. The father of the plaintiffs Nityagopal, defendant No. 9 (original respondent No. 1) Ghosta Gopal and Brajgopal were brothers. Nityagopal died in 1953 leaving behind the plaintiffs and their mother who also died in 1962. According to their case, they thus became entitled to 1/3rd share in the properties belonging to the family. The appellants were very young girls and lived with Gostha Gopal for some time after the death of their parents. But, according to their case, they had to leave for their maternal grandmother 's place in 1964 due to the ill treatment by their uncle. In 1965, a collusive suit for partition was commenced by both the uncles Gostha Gopal and Brajgopal, in which although the plaintiffs were impleaded as parties, their address was wrongly mentioned in the plaint. Consequently no summons could be served on them nor did they have any information about the suit and the decree passed therein. No share was allotted to the appellants at all. After they learnt about the collusive suit and the decree, they filed the present suit being T.S. 32 of 1967, for setting aside the earlier decree and for partition. The trial court accepted the plaintiffs case that the earlier decree was obtained by fraud. The plaintiffs were awarded 1/3rd share as claimed by them. Brajgopal became reconciled to the situation but Gostha Gopal challenged the decision in the aforementioned First Appeal No. 184 of 1972. 291 3. The parties reached an amicable settlement and the appeal was disposed of on 27.3.1979. Accordingly the heirs of Brajgopal (who was dead by then) got their 1/3rd share in accordance with the trial court 's decision and the suit so far as the other two branches, that is, the plaintiffs and Gostha Gopal were concerned, was disposed of on the terms as mentioned in paragraph 1 above. According to the case of the plaintiffs appellants they had no information of the application dated 28.8.1981, filed by the defendant No. 9 for extension of the period for payment of the second instalment of Rs.30,000 and when a copy of the application was offered to their advocate he did not accept the same making an endorsement thereon that notice should be served directly on the plaintiffs as he did not continue to hold any authority on their behalf. Despite this stand of their learned counsel in the High Court, no notice was sent to the plaintiffs and the case was listed only after two days on 31.8.1981. The plaintiffs ' advocate although he did not represent them on that date was present in Court when the case was called out, and pointed out that there was no justification for excusing the long delay. Earlier the court by its order dated 17.8.1981, after taking into consideration the conduct of the defendant No. 9 in not complying with the terms of the compromise, had permitted the plaintiffs to refund the sum of Rs.10,000 paid to them as the first instalment. The plaintiffs ' counsel pointed out that the aforesaid order had finally closed the matter. The court, however, allowed the prayer of the defendant and permitted him to pay the remaining money along with an additional sum of Rs.6,000 by way of compliance of the terms of the compromise. The counsel who was representing the plaintiffs earlier, refused to accept the money when offered, and the court permitted the defendant to deposit the amount with the Registrar of the court observing that the same would be available to be withdrawn by the plaintiffs. When the petitioners learnt about the order they took a copy of the same and approached this Court under Article 136 of the Constitution. While hearing the Special Leave Petition this Court directed the Subordinate Judge, Baripada to ascertain the market value of the 1/6th share of the property in question. The Subordinate Judge in his report to this Court stated that the value of the entire properties would be Rs.13,90,000 and the value of 1/6th share would accordingly be Rs.2,31,716. After the parties filed a number of affidavits, special leave was granted on 30.7.1982. Mr. Bhagat, appearing in support of the appeal, contended that an order based on the consent of the parties can be modified only 292 with further consent and it is not open to the court to alter the terms otherwise. It was further argued that assuming the court to be so empowered, the jurisdiction has to be exercised in exceptional circumstances and only in the ends of justice. If the High Court had directed notice to be issued to the plaintiffs, they would have placed before the court the circumstances showing that it was against the cause of justice to allow the prayer of defendant No. 9 and specially so after such a long delay. The plaintiffs were shabbily treated by their uncle after the death of their father when they were very young and had to take refuge at their deceased mother 's parental home. Out of the two sisters only one could be married, and the younger one could not be married as the sum of Rs.30,000 promised by the respondent No. 1 to be paid by 28.2.1980 was not actually paid. According to the affidavit filed before this Court by way of rejoinder to the respondents ' supplementary affidavit she was not married till then. The learned counsel, therefore, argued that there was no justification whatsoever for the High Court to condone the delay and extend the period for deposit of the money by the respondent after more than 1 1/2 years of default. Mr. Mohanty, the learned counsel representing the contesting respondents, who have been substituted in place of the original respondent No. 1 Gostha Gopal, contended that the 6th term of the compromise dealing with the consequence of default in payment of the instalments is penal in nature and must, therefore, be held illegal. He urged that the clause being severable from the other terms of the compromise should be ignored and the other terms of the compromise ought to be given effect to. As a result the clause that on the nonpayment of the agreed sum by the time indicated therein the decree of the trial court would become final, must be rejected as illegal. Reliance was placed on Section 74 of the Indian Contract Act. It was further argued that the position with respect to an order of a court of law made on the basis of consent of parties is also the same and it is not correct to suggest that in the circumstances of the present case the court had no power to permit the respondent No. 1 to make the deposit later. The learned counsel relied on the observations made in Charles Hubert Kinch vs Edward Keith Walcott & Ors., AIR 1929 P.C. 289, Banku Behari Dhur vs J.C. Galstaun & Anr., AIR 1922 P.C. 339 and Jagat Singh & Ors. vs Sangat Singh & Ors., AIR 1940 P.C. 70 and the decision of this Court in Smt. Periyakkal & Ors. vs Smt. Dakshyani; , It was argued that it is not right to assume that the decree of the trial court was unassailable in appeal. The respondent No. 1 had a substantial defence which he could have suc 293 cessfully pressed if the dispute had not been amicably settled. We do not find any merit in the argument that the impugned clause 6 of the agreement is illegal being penal in nature and has, therefore, to be ignored. It has to be noted that the plaintiffs had in the trial court obtained a decree for partition for 1/3rd share in the suit properties and there was presumption in favour of correctness of the decree. At the appellate stage one of the three branches represented by the heirs of Brajgopal was satisfied with the share allotted to them and the interest of Gostha Gopal (defendant No. 9) was identical to their interest. The situation was acceptable to the defendant No. 9 also but he wanted to acquire half the share of the plaintiffs on payment of consideration. The plaintiffs agreed and the sum of Rs.40,000 was fixed as the price. In clause 2 of the agreement, as mentioned below, it was expressly stated thus: "The sum of Rs.40,000 agreed to be paid by defendant No. 9 to the plaintiffs as compensation for the 1/6th share shall be paid in two instalments: . " (Emphasis added) The amount was to be paid by way of price was reiterated by the use of the word "consideration" in clause 3. It is significant to note that the defendant No. 9 in the court below or his heirs (after his death) before us have not suggested that the entire compromise should be ignored on account of the impugned clause 6. They have been relying upon the compromise except the default clause which alone is sought to be ignored. They insist that under the compromise the shares allotted to the different branches should be treated as final and further half of the share of the plaintiffs, i.e. 1/6th share in the suit properties should have gone to the defendant No. 9 (and after him, to them, i.e. his heirs) for Rs.40,000. This part of the compromise is in substance an agreement for transfer by the plaintiffs of half their share for a sum of Rs.40,000 to be paid within the time indicated. It is true that the market price of the property was higher, and a beneficial right was bestowed on the defendant No. 9 to acquire the same for an amount considerably low. In this background the defendant was subjected to the condition that if he had to take the advantage of the bargain he was under a duty to pay the stipulated amount by the time mentioned in the agreement. On failure to do so within time, he was to be deprived of this special benefit. Such a clause cannot be considered to be a penalty clause. The expression 'penalty ' is an elastic term with many different shades of meaning but it always involves an idea of 294 punishment. The impugned clause in the present case does not involve A infliction of any punishment; it merely deprives the defendant No. 9 of a special advantage in case of default. Coming to the next question as to whether the High Court acted rightly in extending the period for payment of the second instalment, the learned counsel for the parties have placed all the facts and circumstances of the case in detail in support of their respective arguments, and we have considered them closely and do not have any hesitation in holding that the High Court, assuming that it had the power to do so, was not justified in allowing the prayer of the defendant No. 9 permitting him to make a grossly belated payment. Even where such a power exists it is not to be exercised liberally. In Smt. Periyakkal and Ors. vs Smt. Dakshyani; , , relied upon by the respondents, this Court thus observed: "Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause . " In the present case, justice is manifestly in favour of the plaintiffs and against the contesting respondents and further the clause in question was not a forfeiture clause. Even the High Court had to observe as follows: "The conduct of the appellant (i.e. the defendant No. 9) is indeed very reprehensible. Though extensions were obtain ed from us, he did not comply with the directions and suffered order No. 72 dated 17.8.1981 to be passed. Only when his rights were taken away did he realise the real effect of what he had lost." In view of our conclusion it is not necessary to decide the abstract question of the general power of the court in this regard. The grievance of the plaintiffs that they were not afforded reasonable opportunity to contest the defendants ' prayer is also well founded. The appeal in the High Court had been disposed of earlier. After the default in payment of the second instalment occurred the present appellants placed the circumstances before the court and prayed for permission to refund the first instalment of Rs.10,000, 295 received by them so that they could take full advantage of the compromise decree. The matter was fully considered and decided by the order dated 17.8.1981 as mentioned by the High Court in the above quoted passage. In the situation the counsel who represented the plaintiffs in the appeal could not have been held to have continued to represent them specially when they informed the court that he had no further authority and that notice should be directly sent to the plaintiffs. However, we do not consider it necessary to remand the matter to the High Court for fresh consideration as we have considered all the relevant materials and have come to a final conclusion on merits in favour of the plaintiffs. For the reasons mentioned above, the order dated 31.8.1981 passed by the Orissa High Court in First Appeal No. 184 of 1972 is set aside and the application filed by Gostha Gopal Dey for extension of time is rejected. The appeal is accordingly allowed with costs payable to the appellants by the contesting respondents. S.L. Appeal allowed.

% The appellants had filed a suit for partition of property claiming 1/3rd share. A preliminary decree was passed by the trial court. Respondent No. 1 (defendant No. 9 in the suit) challenged the decree before the High Court in first appeal. The appeal was disposed of on compromise whereby the appellants plaintiffs ' claim to l/3rd share was accepted, but it was agreed that half of the share of the plaintiffs would go to the defendant No. 9, provided he paid Rs.40,000 to the plaintiffs in two instalments, the first one of Rs.10,000 by 31.7.1979 and the second of the remaining amount, by 28.2.1980, failing which payment within time, the decree passed by the trial court would stand confirmed as per the terms of the compromise. The first instalment was paid within time, but the remaining amount was not paid. The defendant No. 9 made an application before the High Court on 28.8.1981 for extension of time for payment of the second instalment. The High Court by its order dated 31.8.1981 allowed the application. The appellants moved this Court by special leave, challenging the said order dated 31.8.1981 of the High Court. The appellants inter alia contended that an order based on the consent of the parties could be modified only with the further consent of the parties and it was not open to the Court to alter the terms otherwise. If the High Court had issued notice on the application for extension of time made by the defendant No. 9 to the plaintiffs appellants, they would have placed before the Court the circumstances showing that it was against the cause of justice to allow the prayer of the defendant No. 9 and specially so after such a long delay. There was no justification whatsoever for the High Court to condone the delay and extend the period for deposit of the money, they contended. 288 The contesting respondents argued that the 6th term of the com promise dealing with the consequence of the default in payment of the instalments was penal in nature and illegal, and that the clause being severable from the other terms of the compromise should be ignored. It was further argued that it was not correct to suggest that the Court had no power to permit the respondent No. I to make the deposit later. Allowing the appeal, the Court, ^ HELD: There was no merit in the argument that the impugned clause 6 of the agreement was illegal being penal in nature. It had to be noted that the plaintiffs had in the trial court obtained a decree for partition for their l/3rd share in the suit properties and there was presumption in favour of correctness of the decree. At the appellate stage, one of the three branches of the parties, represented by the heirs of Brajgopal, and uncle of the plaintiffs appellants, was satisfied with the share allotted to them and the interest of defendant No. 9, second uncle of the plaintiffs, was identical to their interest. The situation was acceptable to the defendant No. 9 also but he wanted to acquire half the share of the plaintiffs on payment of consideration, fixed at Rs.40,000. The amount was to be paid by way of price. It had not been suggested by the defendant No. 9 or his heirs that the entire compromise should be ignored on account of the impugned clause 6 thereof. They had been relying upon the compromise except the default clause which alone was sought to be ignored. That part of the compromise was in substance an agreement for transfer by the plaintiffs of half of their share for a sum of Rs.40,000 to be paid within stipulated time. The market price of the property was higher, and a beneficial right was bestowed on the defendant No. 9 to acquire the property for a considerably low amount. In this background, the said defendant was subjected to the condition that if he had to take the advantage of the bargain, he was under a duty to pay the stipulated amount within the time mentioned in the agreement. On failure to pay within time, he was to be deprived of that special benefit. Such a clause could not be considered a penalty clause. The expression 'penalty ' is an elastic term with many different shades of meanings, but it always involves an idea of punishment. The impugned clause in this case did not involve infliction of any punishment, it merely deprived the defendant No. 9 of a special advantage in case of default. [293A H: 294A] The High Court assuming it had the power to do so, was not justified in allowing the prayer of the defendant No. 9 to make a grossly belated payment. Even where such a power exists, it is not to be exercised liberally. [294B C] 289 Justice was manifestly in favour of the plaintiffs and against the contesting respondents. The clause in question was not a forfeiture clause. [294E] The grievance of the plaintiffs that they were not afforded reasonable opportunity to contest the prayer of the defendant was also well founded; notice of the application for extension of time should have been directly sent to the plaintiffs. The Court did not consider it necessary to remand the matter to the High Court for a fresh consideration, as it had come to a final conclusion on merits in favour of the plaintiffs. [294G; 295B] The order dated 31.8.1981 of the High Court was set aside and the application filed by respondent No.1 defendant No. 9 for extension of time was rejected. [295C D] Charles Hubert Kinch vs Edward Keith Walcott & Ors. , A.I.R. 1929 P.C. 289; Banku Behari Dhur vs J.C. Galstaun & Anr., A.I.R. 1922 P.C. 339; Jagat Singh & Ors. vs Sangat Singh & Ors., A.I.R. 1940 P.C. 70 and Smt. Periyakkal & Ors. vs Smt. Dakshyani; , , referred to.

Civil Appeal No. 1401 of 1991. From the Judgment and Order dated 26.10.1987 of the Karnataka High Court in W.A. No. 607 of 1982. S.R. Bhat and Prabir Chaudhury (NP) for the Appellants. A.B. Rohtagi, M. Veerappa, R.L. Bhardwaj and Vishnu Mathur for the Respondents. The Judgment of the Court was delivered by FATHIMA BEEVI, J. The Karnataka Slum Areas (Improvement and Clearance) Act, 1973, which received the assent of the President on 1st October, 1974, is an Act to provide for improvement and clearance of slums in the State of Karnataka. Section 3 of the Act empowers the Government to declare certain areas as slum areas. If the Government is satisfied that any area which is likely to be a source of danger to health, safety or convenience of the public of that area or of its neighbourhood by reason of the area being low lying, unsanitary, squalid, over crowded or otherwise, the Government may by notification declare the areas as 'slum area '. Under Section 11, when the Government is satisfied on a report from the competent authority that the most satisfactory method of dealing with the conditions in the area is the clearance of such area and demolition of the buildings in the area, it may, by notification, declare the area to be the 'slum clearance area '. The Notification No. HMA 59 MCS 76 dated 17.1.1977 was issued by the Karnataka Government declaring an extent of one acre in Timber Yard slum by the side of Main Road, Cottonpet, Bangalore, as 'slum area '. After considering the objections, another notification dated 30.12.1977 was issued under Section I(1) of the Act declaring 978 the entire land as 'slum clearance area '. However, on January 20, 1981, the Government issued notification under Section 3(1) cancelling the earlier notification dated 30.12.1977 and re declaring an extent of 14 1/2 guntas only as 'slum area '. The notification dated 20.1.1981 had been challenged by the appellants mainly on the grounds that it is in violation of the principle of natural justice and Article 14 of the Constitution has been violated. It was contended that slum dwellers who are affected by the Government 's action have not been given an opportunity of being heard and they have been denied equality by denying basic human needs since a major part of the slum area has been excluded from the operation of the scheme. The single Judge of the High Court took the view that the appellants had no locus standi to challenge the impugned notification and even on merits there was no case. The Division Bench of the High Court agreed on the question of locus standi and without going into the merits confirmed the judgment. The appellants have approached this Court under Article 136 of the Constitution of India. We have granted special leave to appeal. The learned counsel for the appellants relying on the decisions of this Court in section P. Gupta vs Union of India, [1982] 2 SCR 365 and Olga Tellis vs Bombay Municipal Corporation, [ 1985] Suppl. 2 SCR 51 vehemently contended that the High Court has erred in holding that the petitioners have no locus standi. He also submitted that in view of the purpose of the legislation and the scheme contemplated thereunder once action has been taken declaring a larger area as 'slum clearance area ', any change thereafter which would directly affect the slum dwellers could not be taken without giving the affected persons an opportunity of being heard and, there is, therefore, the clear violation of the principle of natural justice. It was also urged that there is no specific provision under the statute enabling the Government to rescind the notification and assuming that it exists, there was no proper exercise of the power. Mr. Rohtagi, counsel appearing on behalf of the 3rd respondent, submitted that the first notification dated 17.1.1977 was challenged by the owners of the land in a writ petition as they were not heard as required and the fresh notification have been issued on the assurance given before the Court that they would be heard. It was pointed out that there was no need to hear the owners or occupiers at the stage of issuing the notification under Section 3(1) of the Act and Section 11 979 does not confer any Statutory right to the occupiers. Relying on Section 21 of the General Clauses Act, it was maintained that the power to withdraw or rescind the notification was inherent and the authority who is empowered to issue the notification is entilitled to rescind the same. It was also pointed out that there had been dispute over the title of the land in question that civil litigation was in progress and that the earlier declaration was made without proper basis. Action has been taken by the owners against the tenants for eviction and orders have been obtained in their favour and the petitioners have no case and are not entitled to any relief. The counsel for the State adopted these arguments. The first question that falls for consideration is whether the appellants can challenge the action of the Government. This question need not detain us when the law is now settled that in such situation even a public interest litigation would lie. The first appellant Association represents the interests of the slum dwellers and the second appellant himself is one of the residents in the area. The action of the Government on the averments made affects a class of persons and if that group of persons is represented by the Association, they have a right to be heard in the matter. Where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter as held by this Court in Bandhua Mukti Morcha vs Union of India & Ors., ; We are, therefore, of the view that the High Court was wrong in concluding that appellants were incompetent to invoke the jurisdiction of the Court. We shall now consider the argument that the State Government had no power to rescind the notification issued under Sections 3 and 11 in the absence of any specific provision in the Act. Section 21 of the General Clauses Act is in pari materia with Section 10 of the Karnataka General Clauses Act. This Section reads: "21. POWER TO ISSUE TO INCLUDE, POWER TO ADD TO, AMEND, VARY OR RESCIND NOTIFICATIONS,ORDERS, RULES OR BYE LAWS. Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add 980 to, amend, vary or rescind any notifications, orders, rule or bye laws so issued. " Under Section 21 of the General Clauses Act, the power to issue a notification includes the power to rescind it. It is always open to the Government to rescind the notification. We shall refer to the decisions of this Court in State of Kerala vs K. G. Madhavan Pillai, ; ; State of M. P. vs, V. P. Sharma, [ ; and Lt. Governor of H. P. vs Sri Avinash Sharma,[1970] 2 SCC 149. In these cases arising under the Land Acquisition Act, the issue before the Court was whether the Government could exercise powers only under Section 48 of the Land Acquisition Act to withdraw a notification for acquisition made under Section 4(1) of the Act. When the Government issued successive notifications under Section 6 covering different portions of the land notified for acquisition under Section 4(1), the validity of the last of the notification was challenged on the ground that a notification under Section 4(1) could be followed only by one notification under Section 6. In repelling the contention, this Court incidentally observed at page 693 thus: "That the only way in which the notification under Section 4(1) can come to an end is by withdrawal under Section 48(1)" is not correct because "under Section 21 of the General Clauses Act, the power to issue a notification includes the power to rescind it and therefore it is always open to the Government to rescind a notification under Section 4 or under Section 6 and a withdrawal under Section 48(1) is not the only way in which a notification under Section 4 or Section 6 can be brought to an end." In Lt. Governor of H.P. vs Sri Avinash Sharma, (supra) the Court observed at page 151 thus: "Power to cancel a notification for compulsory acquisition is, it is true, not affected by Section 48 of the Act; by a notification under Section 21 of the General Clauses Act, the Government may cancel or rescind the notification issued under Sections 4 and 6 of the Land Acquisition Act. But the power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government. " In Lachmi Narain vs Union of India, ; , this 981 Court observed at page 808 thus: "Section 21, as pointed out by this Court in Gopichand vs Delhi Admn., [1959] Suppl. 2 SCR 87, embodies only a rule of constructions and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. " In State of Bihar vs D.N. Ganguly & Ors., ; , it was held that it is well settled that the rule of construction embodied in S.21 of the General Clauses Act can apply to the provisions of a statute only where the subject matter, context or effect of such provisions are in no way inconsistent with such application. In that case, the question was where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under Section 10(1)(d) of the Industrial Disputes Act, can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose? The Court held the notification to be invalid and ultra vires pointing our that is would be necessary to examine carefully the scheme of the ACt, its object and all its relevant and material provisions before deciding the application of the rule of construction enunciate by Section 21. After examining the relevant provisions of the Act, the Court said that once an order in writing is made by the appropriate government under Section 10(1)(d), the proceedings before the tribunal are deemed to have commenced and if the appropriate government has by implication the power to cancel its order passed under Section 10(1), the proceedings before the tribunal would be rendered wholly ineffective by the exercise of such power and Section 21 cannot be invoked. In Kamla Prasad Khetan vs Union of India, ; , this Court considred the scope of Section 21 of the General Clause Act. At page 1068, the Court observed thus: "The power to issue an order under any Central Act includes a power to amend the order; but this power is subject to a very important qualification and the qualification is contained in the words `exercisable in the like manner and subject to the like sanction and conditions (if any) '. . . . . . The true scope and effect of the expression `subject to the like conditions (if any) ' occurring in Section 21 of the General Clauses Act has been explained. " 982 Relying on these decisions, the learned counsel for the appellants contended that even if source of power could be traced under Section 21, the exercised of that power could only be in the same manner as provided and when a notification under Section 3(1) had been issued declaring certain areas as `slum area ', the power to rescind the notification and limit the extent could be exercised only after hearing the affected parties, for the Government to satisfy itself that what has already been declared does not come within the scope of the proposed scheme. The object of the statute and the relief that was sought to be conferred are matters to be taken into consideration in such action. It has been brought to our notice that about 100 persons had been living in the area under conditions which require the implementation of the scheme under the Act for their redressal and once steps have been taken in that direction any variation that could affect the occupants in the areas was required to be made only after giving them an opportunity of being heard. It is thus maintained that there had been no proper exercise of the power assuming that the power is vested on the Government and there is clear violation of the principle of natural justice. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the body of persons appointed for the purpose. It is only where there is nothing in the statue to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. The Mysore Slum Areas (Improvement and Clearnance) ACt, 1958, this Court held in Government of Mysore & Ors. vs J.V. Bhat etc. ; , thus: There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under section 3 or an area as a clearance area under section 9 or before taking action under section 10. All these difficulties will be removed if the affected persons are given 983 an opportunity to be heard in respect of the action proposed. " The Preamble to the present Act itself states that the Act is to provide for the improvement and clearance of slums in the State. Under the existing law, it has not been possible effectively to check the increase and to eliminate congestion and to provide for basic needs such as streets, water supply, and drainage and to clear the slums which are unfit for human habitation. To obviate this difficulty, it is considered expedient to provide for the removal of unhygenic and insanitary conditions prevailing in the slums for better accommodation and improved living conditions for slum dwellers for the promotion of public health generally. These are the objectives sought to be achieved by the enactment which has been made in implementation of the Directive Principles of State Policy to improve public health. It is, therefore, obvious that when a declaration has been made in implementation of the Directive Principles of State Policy to improve public health. It is, therefore, obvious that when a declaration is made under section 3 and a further declaration is made under section 11, the inhabitants of the areas are affected and any further action in relation to the area which areas are affected and any further action in relation to the area which is declared to the `slum clearance area ' without affording such persons an opportunity of being heard would prejudicially affect their rights. The right to be heard in the matter has been acquired by the earlier action of the authority in considering the area for the purpose of the scheme. This is clear from the proviso to sub sec. (1) of Section 11 of scheme. This is clear from the proviso to sub sec. (1) of Section 11 of the Act. When any alternation is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action. In this view of the matter it is to be held that when a notification is made rescinding the earlier notifications without hearing the affected parties, it is clear violation of the principle of natural justice. Such action is exercise of the implied power to rescind cannot then be said to have been exercised implied power to rescind cannot then be said to have been exercised implied power to rescind cannot then be said to have been exercised subject to be quashed on this ground. It shall be open to the Government to proceed after affording the slum dwellers an opportunity of being heard on the basis of the earlier notifications that were in force. In the result, the appeal is allowed and the order of the High Court is set aside. The impugned notification is quashed subject to the observations made. We make no order as to costs. Appeal allowed.

Under Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 Notification No. HMA 59 MCS 76 dated 17.1.1977 was issued by the State Government declaring an extent of one acre in the city of Bangalore, as 'slum area '. After considering the objections, another notification dated 30.12.1977 was issued under Section 11(1) of the Act declaring the entire land as 'slum clearance area '. However, on January 20, 1981, the Government issued notification under Section 3(1) cancelling the earlier notification dated 3.12.1977 and re declaring an extent of 14 1/2 guntas only as 'slum area '. The appellants, an Association representing the interest of slum dwellers and a resident of the area challenged notification dated 20.1.1981 on the ground that it was in violation of the principle of natural justice and Article 14 of the Constitution inasmuch as the slum dwellers affected by the Government 's action were not given an opportunity of being heard and were denied equality, since a major part of the slum area has been excluded from the operation of the scheme. A Single Judge of the High Court held that the appellants had no locus standi to challenge the notification and that even on merits there was no case. The Division Bench agreed on the question of locus standi but did not go into the merits. 975 The appellants filed an appeal by special leave before this Court, contending that the High Court had erred in holding that the petitioners had no locus standi, that in view of the purpose of the legislation and the scheme contemplated thereunder, once action had been taken declaring a larger area as 'slum clearance area ', any change thereafter which directly affected the slum dwellers could not be taken without giving the affected persons an opportunity of being heard and, there was, therefore, clear violation of the principle of natural justice, and that there was no specific provision under the statute enabling the Government to rescind the notification, and even assuming that it existed there was no proper exercise of the power. On behalf of Respondent No. 3 it was submitted that there was no need to hear the owners or occupiers at the stage of issuing notification under Section 3(1) of the Act and Section 11 did not confer any statutory right on the occupiers, and that under Section 21 of the General Clauses Act, the power to withdraw or rescind the notification was inherent and the authority who was empowered to issue the notification was entitled to rescind the same. The State adopted the contentions of Respondents No. 3. Allowing the appeal, this Court, HELD: 1. 1. Where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who, on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter. [979E] Bandhua Mukti Morcha vs Union of India & Ors. , ; , relied on. section P. Gupta vs Union of India, [19821 2 SCR 365; Olga Tellis vs Bombay Municipal Corporation, [1985] Suppl. 2 SCR 51, referred to. 1.2. The first appellant Association represents the interests of the slum dwellers and the second appellant himself is one of the residents in the area. The action of the Government affects a class of persons and if that group of persons is represented by the Association, they have a right to be heard in the matter. Even a public interest litigation would lie in such a situation. Therefore, the High Court was wrong in concluding that appellants were incompetent to invoke the jurisdiction of the Court.[979D, F] 976 2.1. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard but, on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported. 1982F] 2.2. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. [982E] 2.3. When a declaration is made under Section 3 and a further declaration is made under Section 11, the inhabitants of the areas are affected and any further action in relation to the area which is declared to be 'slum clearance area ' without affording such persons an opportunity of being heard would prejudicially affect their rights. The right to be heard in the matter has been acquired by the earlier action of the authority in considering the area for the purpose of the scheme. This is clear from the proviso to sub section (1) of Section 11 of the Act. When any alteration is sought to be made in the original scheme, it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action. [983D E] 2.4. It is true that under Section 21 of the General Clauses Act, the power to issue a notification includes the power to rescind it, and it is always open to the Government to rescind the notification. [980B] State of Kerala vs K. G. Madhavan Pillai, ; ; State of M.P. vs V.P. Sharma, [1966]3 SCR557; Lt. Governor of H.P. vs Sri Avinash Sharma, [ ; ; Lachmi Narain vs Union of India,[ ; ; State of Bihar vs D. N. Ganguly & Ors., [ ; and Kamia Prasad Khetan vs Union of India, ; , referred to. But when a notification is made rescinding the earlier notifications without hearing the affected parties, it is clear violation of the principles of natural justice. Such action in exercise of the implied 977 power to rescind cannot then be said to have been exercised subject to the like conditions within the scope of Section 21 of the General Clauses Act. [983F] In the circumstances, the notification dated 20.1.1981 is liable to be quashed. It shall be open to the Government to proceed after affording the slum dwellers an opportunity of being heard on the basis of the earlier notifications that were in force. [983F G]

riminal Appeal No. 361 1975. (Appeal by Special Leave from the Judgment and Order dated the 19th Sept., 1975 of the Karnataka High Court in Criminal Petition No. 52 of 1975.) D. Mookerjee and B.R.G.K. Achar, for the appellant. H.B. Datar and R.B. Datar, for respondents. The Judgment of the Court was delivered by BHAGWATI, J. , This appeal by special leave raises a short but interesting question of law relating to the interpretation of certain provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Old Code"). The facts giving rise to the appeal are few and may be briefly stated as follows. One Bodegowda was murdered and in regard to this inci dent a case was registered at the Police Station on 13th October, 1973 as Crime No. 62 of 1973. The police inves tigated the case and after the investigation was complete, a charge sheet was filed against the respondents in the Court of Judicial Magistrate, 1st Class Chickmagalur and the case was registered as C.C. No. 2319 of 1973. The learned Magistrate held an inquiry in accordance with the provisions of Chapter XVIII of the old Code and being of the opinion that the respondents should be committed for trial, the learned Magistrate framed a charge against the respondents for having committed an offence under section 302 read with section34 of the Indian Penal Code. The learned Magis trate then read and explained the charge to the respondents and after giving an opportunity to the respondents to. give in a list the names of witnesses whom they wished to be summoned to give evidence, the learned Magistrate made an order committing the respondents for trial by the Court of Sessions, Chickmagalur. This order of committal was made on 15th March 1974 and in pursuance of it, the records of the case were forwarded to the Court of Sessions, Chickmaga lur where they reached on 23rd March, 1974 and the case was registered as S.C. No. 5 of 1974. The Sessions Judge fixed the trial of the case on 15th July, 1974 but before that date, the Public Prosecutor filed an 352 application on 29th June, 1974 praying for permission to withdraw from the prosecution under section 494 of the old Code. The learned Sessions Judge by an order passed on the same day accorded permission to the Public Prosecutor to withdraw from the prosecution and 'discharged ' the respond ents in respect of the offence charged against them. The State thereafter ordered fresh investigation into the of fence and ha consequence of such investigation, a new charge sheet was filed against the respondents and three other accused in the Court of Judicial Magisrate, 1st Class, Chickmagalur. Since this chargesheet was filed after 1st April, 1974 when the Code of Criminal Procedure, 1973 (hereinafter referred to as "New Code") had come into force, the learned Magistrate, following the provisions of the New Code, committed the respondents and the other three accused to stand their trial before the Court of the Ses sions Judge, Chickmagalur for the same offence. When the case came up for hearing before the Sessions Judge, the respondents made an application contending that by virtue of the order dated 29th June, 1974 made by the Sessions Judge under section 494 of the Old Code, the respondents had been acquitted and they were, therefore, not liable to be prose cuted again for the same offence in view of section 300 of the New Code. The Sessions Judge rejected the applica tion, taking the view that the respondents were discharged and not acquitted under the Order dated 29th June, 1974 and, therefore, section 300 of the New Code was not applicable and there was no bar against their fresh prosecution for the same offence. The respondents challenged this Order by preferring a revision application to the High Court. This revision application was allowed and the High Court held that though the Order passed by the Sessions Judge directed that the respondents be 'discharged ', the legal effect of this order was to bring about the acquittal of the respond ents since the withdrawal from the prosecution was made after the charge had been framed and the respondents having been acquitted under that Order, the bar of section 300 of the New Code was attracted and the respondents were not liable to be prosecuted again for the same offence. This order made by the High Court is challenged in the present appeal preferred by the State with special leave obtained from this Court. It may be pointed out that before the High Court it was contended on behalf of the State that the earlier case before the Sessions Judge, viz., Sessions Case No. 5 of 1974, was governed by the provisions of the new Code and, therefore. in view of section 228 of the new Code, t was the obligation of the Sessions Judge to frame a charge before proceeding with the trial and since the withdrawal from the prosecution was effected before the framing of such charge by the Sessions Judge, the order passed by the Sessions Judge amounted to an order of discharge and not of acquit tal. This contention was, however, not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the earlier case before the Ses sions Judge was governed by the provisions of the old Code and the new Code had no application to it. Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force. Here in the present case the Judicial Magistrate had already made an order of. 353 committal on 15th March, 1974 and pursuant to that order, the records of the case had reached the Court of the Ses sions Judge on 23rd March, 1974. The case was, therefore, already before the Court of Sessions prior to 1st April, 1974 and it was pending before that court for trial on 1st April, 1974 when the new Code came into force. It is immaterial as to when the case was actually registered and a number given to it. Since the case was pending for trial before the Sessions Court on 1st April, 1974, it was liable to be tried in accordance with. the provisions of the old Code and it was for this reason that the application for withdrawal from the prosecution was also made by the Public Prosecutor under section 494 of the old Code and not under the corresponding provision of the new Code. Sec tion 494 of the old Code provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return Of the verdict and in other cases, before the judgment is pronounced, withdraw from. the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and the section then goes on to add that: "upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged (in respect of such offence or offences); (b) if it is made after a charge has been framed or when under this Code no charge is required he shall be acquitted in respect of such offence or offences) . " The withdrawal from the prosecution in the present case having been made under this section, it is clear that if it was made before a charge was framed, the respondents would be discharged but if it was made a charge had been framed, the consequence would be that the respondents would be acquitted. It, therefore, becomes material to inquire whether at the date when the withdrawal from the prosecution was made, a charge had been framed against the respondents or not. Whether the order of the Sessions Judge granting consent to the withdrawal from the prosecution amounted to an order of discharge or acquittal would depend upon the answer to this question. It may be pointed out that it is of no consequence that the Sessions Judge directed the respondents to be 'discharged ' because if the legal effect of the order was to acquit the respondents, then the incor rect use of the expression 'discharged ' by the Sessions Judge would not alter the legal position and convert the order of acquittal into one of discharge. Now, in order to determine whether the withdrawal from the prosecution was made before the framing of the charge or after, it is necessary to notice the scheme of the relevant provisions of the old Code. Sessions Case No. 5 of 1974 in which the withdrawal was made was committed to the Sessions Court by the Judicial Magistrate under the provisions of Chapter XVIII of the old Code. The proceeding before the Judicial Magistrate was instituted on a police report and the learned Magistrate, therefore, followed the procedure specified in section 207A. This section lays down a special procedure to be adopted in proceedings instituted on police report with a view to expeditious disposal of criminal cases. Sub section (1) provides that the Magistrate, on 354 receipt of the report forwarded under section 173, shall fix a date for the purpose of holding an enquiry and sub section (2) empowers the Magistrate to issue process for compelling the attendance or any witness or the production of any document. The Magistrate is required by sub section (3) to satisfy himself at the commencement of the enquiry that the documents referred in section 173 have been furnished to the accused. Sub section (4) then requires the Magistrate to proceed to. take the evidence of such persons as may be produced by the prosecution as witnesses to the actual commission of the offence and also empowers the Magistrate to take the evidence of any other witness for the prosecu tion if he thinks it necessary to do so in the interest of justice. The accused is given liberty under sub section (5) to cross examine the witnesses examined under sub sec tion (4) and subsection (6) provides that the Magistrate shall, if necessary, examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him and thereafter give to the prosecution and the accused an opportunity of being heard. If the Magis trate, at the end of this procedure, feels that there is no ground for committing the accused for trial, he is bound to discharge the accused under subsection (6). But where "upon such evidence being taken. , such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard," the Magistrate forms an opinion that the accused should be committed for trial, sub section (7) provides that the Magistrate shall frame a charge under his hand declaring with what offence the accused is charged. Sub section (8) then requires the Magistrate to real and explain the charge to the accused and to give a copy thereof to him free of cost. Sub section (9) provides that the accused shall then be required to give in at once, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence at the trial and when the accused on being required to. give the list under sub section (9) declines to do so., or gives such list, the Magistrate is empowered under sub section (10) to make an order committing the accused for trial by the Court of Session. It will thus be seen that, according to this procedure, the Magistrate is required to frame a charge and to read and explain it to the accused before making an order of committal and the accused is in fact committed to stand his trial before the Court of Session on the charge so framed. This was the procedure followed by the Judicial Magistrate in the present case and in accordance with it, the Judicial Magistrate framed a charge against the respond ents and committed them for trial to. the Court of Session on this charge. The procedure to be followed by the Sessions Court when an accused is committed to it for trial is laid down in Chapter XXII of the old Code. Section 271 provides that when the court is ready to commence trial, the accused shall appear or be brought before it and the charge shall be read out and explained to him and he shall be asked whether he is guilty of the offence charged or claims to be tried. That is the first step to be taken by the Sessions Court in relation to the case committed to it for trial. Nov, obvi ously, the charge that is required to be read out and ex plained to the accused is the charge that has been framed by the Committing Magistrate under sub section (7) 355 of section 207A. There is no provision in Chapter XXIII which requires the Sessions Court to frame a charge before proceeding with the trial of the accused. That is plainly unnecessary because a charge is already framed by the Magis trate when he commits the accused for trial to the Sessions Court and that is the charge on which the Sessions Court is to try the accused. Of course, the Sessions Court is given an overriding power under section 226 that when it finds that an accused is committed for trial without a charge or the charge is imperfect or erroneous, it may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in the old Code as to the framing of charges. But this is only an enabling power to frame a charge where, for some reason or the other, no charge has been framed by the committing Magistrate or to correct a charge where the charge is imperfect or erroneous. It does not say that in every case the Court of Session shall frame a new charge before proceeding with the trial. On the contrary, it clearly postulates that ordinarily there would be a charge framed by the committing Magistrate and it is on that charge that the accused would be tried, unless the Court of Session finds it necessary to alter or amend the charge. It is interesting to compare the procedure under the new Code where there is no provision for framing a charge by the committing magistrate and it is only when the Court of Session to which the case is committed finds, after considering the record of the case and the documents submit ted therewith and after hearing the submissions of the accused and the prosecution, that there is ground for presuming that, the accused has committed an offence which is exclusively triable by the Court of Session, that it is required by section 220 of the new Code to frame a charge against the accused. The charge against the accused under the procedure prescribed in the new Code is to be framed for the first time by the Court of Session while according to the procedure prescribed under the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the power to alter or amend the charge, if it thinks necessary to do so. It is, therefore, clear that when the Court of Session commences the trial of an accused, there is already before it a charge framed by the committing Magistrate and it is that charge, unless altered or amended under section 226, that is required to be read out and explained to the accused and on which the plea of the ac cused is required to be taken. It must follow inevitably as a necessary corollary from this proposition that when the prosecution against an accused who has been committed for trial is allowed to be withdrawn by the Court of Session under section 494, the withdrawal of the prosecution would be after the framing of the charge against the accused and it must result in the acquittal of the accused under clause (b) of that section. We find that this view which we are taking has prevailed with the Madras High Court since the last about eight or nine decades. The Madras High Court held as far back as 1888 in Queen Empress vs Sivarama(1) that where an accused is committed to stand his trial before a court of session on a Charge and the prosecution is withdrawn by (1) 356 the public prosecutor with the consent of the court of session under section 494, the accused is entitled to be acquitted and not merely discharged. The same view was reiterated by the Madras High Court in In re Velayudha Mudali(1). We are in agreement with the view taken in these two decisions of the Madras High Court. We accordingly affirm the decision of the High Court holding that by reason of the Order dated 29th June, 1974 passed by the Sessions Judge granting consent to the with drawal from the prosecution in the earlier case, the re spondents were acquitted and in view of section, 300 of the new Code, they were not liable to be tried again for the same offence and dismiss the appeal. P.B.R. Appeal dismissed. (1) A.I.R 1949 Mad.

Section 494 of the Code of Criminal Procedure 1893 provides that any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict and in other cases before the judgment is pro nounced. withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal (a) if it is made before a charge has been framed the accused shall be discharged; and (b) if it is made after the charge has been framed or when under the Code no charge is required, he shall be acquitted. In the instant case, the committing Magistrate framed a charge against the respondents for having committed an offence under section 302 read with section 34 I.P.C. and committed them for trial by a Sessions Court. The Sessions Judge granted permission sought by the Public Prosecutor to with draw from the prosecution under section 494 of the Code and "discharged" the respondents. After fresh investigation a new charge sheet was filed. By then the Code of Criminal Procedure 1973 had come into force. Following the provisions of the new Code, the commit ting Magistrate committed the respondents to stand trial before the Sessions Court for the same offence. When the case came up for trial, the respondents contended that by virtue of the earlier orders of the Sessions Court, they had been acquitted and that they were not liable to be prosecut ed again for the offence in view of section 300 of the new Code. This was rejected on the ground that they had earlier been "discharged" and not acquitted and that section 300 had no appli cation to their case. The High Court allowed their revision application holding that since the withdrawal from the prosecution in the earlier case was made after the charge had been flamed, the respondents had been acquitted and the bar of section 300 was attracted. Dismissing the appeal, HELD: The High Court was right in holding that by reason of the order of the Sessions judge granting consent to the withdrawal from the prosecution in the earlier case, the respondents were acquitted and in view of section 300 they were not liable to be tried again for the same offence. [356B] (1) Section 484 of the new Code provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force. [352H] In the instant case, when the new Code came into force the case was pending before the Court of Session for trial and so was liable to be tried according to the old Code. It was for this reason that the withdrawal application was made under section 494 of the old Code. [353A B] (2) (a) When the prosecution against an accused commit ted for trial is allowed to be withdrawn by the Court of Session under section 494 of the old Code, 351 the withdrawal of the prosecution would be after the framing of the charge against the accused and it must result in the acquittal of the accused under el. (b) of that section. [355G] (b) The charge against an, accused under the procedure prescribed in the new Code is to be framed for the first time by the Court of Session while according to the proce dure prescribed under the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the vower to alter or amend the charge, if it thinks necessary to do so. Therefore, when under the old Code, the Court of Session commences the trial of an accused, there is already before it a charge framed by the committing Magis trate and it is that charge that is required to be read out and explained to the accused. and on which the plea of the accused is required to be taken. [355D F] (c) In the instant case, the Judicial Magistrate fol lowed this procedure and after framing the charge committed the respondents for trial. [354G] Queen Empress vs Sivarama, and In re. Ve layudha Mudali, A.I.R. 1949 Mad 508, approved.

No. 67 of 1985 (Under Article 32 of the Constitution of India) Dr. Gaurl Shanker (Amicus Curiae) for the Petitioner. Madhu Sudan Rao, Mrs. Kittu Kumarmangalam and C.V. Subba Rao for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Harbhajan Singh Dhalla, the petitioner herein asserts that he is going from piller to post to collect Rs.27,000 which according to him is due from the Algerian Embassy, he further asserts that this is a case where a little man 's small claim is attempted to be thwarted by technical device. He is an Indian National. He had under taken general maintenance work at the Embassy of Algeria in India and at the residence of the then Ambassador of Algeria in New Delhi in the year 1976. He claims that his rightful dues in respect of the said work runs into more than Rs.28,500. He says that he has been deprived of the same. He states that he is in search of a remedy but the remedy alludes him and his claim remains uninvestigated and unde cided. 117 The petitioner narrates his story that he had written to fail and sundry to extend some help in obtaining his dues but nothing tangible has resulted so far. The petitioner had approached the Ministry of External Affairs for granting permission to sue the Algerian Embassy for recovering his dues. After numerous letters and passage of number of years in the processing of his request,, he received a letter from the Ministry of External Affairs dated 26th November, 1983 which is Annexure 'A ' to the petition. It states, inter alia. "After due consideration the Government of India regrets that permission to sue the State of Algeria cannot be given on political grounds". It may be mentioned that according to the petitioner he had done the jobs of building maintenance, reconditioning and renovation work at the Embassy of Algeria and at the residence of the then Ambassador of Algeria in the year 1976. He completed the work assigned to him and submitted the bills for Rs.29,000 which were not settled in toto and he claimed that even the sum of Rs.11,380 had not been. settled by the Embassy. The balance, according to the peti tioner, accumulated to Rs.27,000 at the rate of 18% inter est. A representation was made to the Ministry of External Affairs. ' The Ministry delayed action and then allegedly took up the matter with the Algerian Embassy who in turn intimated the Ministry that according to the accounts main tained by the Embassy all bills pertaining to work done by the petitioner had been settled by the Embassy. The Embassy further claimed to have issued a cheque beating cheque No. 245273 amounting tO Rs.17,500 in favour of the petitioner on 17th June, 1976 which, according to the Embassy, was en cashed by the petitioner the same day. This fact was sought to be corroborated by the State Bank of India with whom enquiries were made by the Ministry of External Affairs. The petitioner, however, claimed that though he received payment against this cheque, he had handed over the amount to the Financial Attache of the Embassy who paid him only Rs.3,330. The petitioner alleged further that when he went to get the remaining amount, the financial attache had pointed a re volver at him and threatened him with dire consequences. (See Annexure 'A ' to .the affidavit of the petitioner af firmed on 17th March, 1986 p.31 of the Paper Book). The petitioner mentioned hereinafter that he had requested the Ministry of External Affairs to grant permission to sue the State of Algeria under section 86 of the Code of Civil Procedure for realisation of the claim with interest. The petitioner was given a hearing as required under section 86 of the Code, according to the respondent, on 2nd November, 1983, which is, however, denied by the petitioner. 118 According to the affidavit of the respondent, which is the Union of India, after giving due consideration, the Ministry was of the opinion that no prima facie case had been made out and it was decided not to grant permission to the petitioner. After receipt of the official communication from the Ministry as noted above, the petitioner got an appointment with Late Smt. Indira Gandhi, the then Prime Minister of India and requested her for compensation from Prime Minis ter 's relief fund or some loan from any Nationalised Bank. He further alleged that Late Shrimati Gandhi helped the petitioner to get a letter which was addressed to the Minis try of Finance but the appropriate authorities failed to acknowledge the grievances and demands of the petitioner. In those circumstances the petitioner has approached this Court for issue of an appropriate writ. A rule Nisi having been issued on this application, an affidavit on behalf of the respondent was filed. In the counter affidavit on behalf of the Union of India, the facts as mentioned hereinbefore have been reiterated and it was stated in the submission that the petition for recovery of the compensation as claimed was not maintainable. It in volved the disputed questions of facts and there was no cause of action against the Union of India. The petitioner filed an affidavit in reply. There are certain annexures indicating as to what happened. For the purpose of disposing of the present application, it is not necessary to refer to the same. We have heard the parties. We requested Dr. V. Gauri Shankar, Senior Advocate of this Court, to help us as amicus curie since the petitioner was appearing in person. He has rendered valuable assistance and we record our appreciation and gratitude for the same. In this case two aspects require to be emphasized. First is the right of a citizen to carry on his business and carry on trade freely subject to limitation under the law. Our Constitution guarantees that right subject to certain limi tations as contained in the relevant articles of the Consti tution. That right of the petitioner in this case was sub ject to the provisions of law controlling, restricting or inhibiting that right. The petitioner states that he had performed the general maintenance work at the 'Embassy of Algeria and at the residence of the then Ambassador of Algeria. He had therefore the right to be paid his reasona ble remuneration or dues in accordance with the law subject to the bargain between the parties and subject further to any reasonable 119 prohibitions or restrictions under the law of the country. There are disputes in this case as we have noticed as to what is the amount due, if any, and further whether any amount was paid as asserted by the Algerian Embassy and as denied by the petitioner. These disputes have to be resolved in accordance with the law of this country, both under the principles of Lex Loci contractus as well as lex situs. The Union of India has indubitably the jurisdiction and obliga tion in the appropriate case to give sanction but the Union cannot in any arbitrary manner or administratively adjudi cate those disputes or determine the claim. The petitioner wants to have the disputes adjudicated as he alleges that he has failed to realise the amount which, according to him, is reasonably and lawfully due to him. The communication to the petitioner which is impugned in this application dated 26th November, 1983 states that "permission to sue the State of Algeria cannot be given on political grounds". But in the affidavit filed on behalf of the Union of India in these proceedings, it is stated that "The Ministry was of the opinion that no prima facie case was made out and the facts of the case were not superiorily covered under section 86 of Code of Civil Procedure. It is submitted that under section 86, paras 86(1) and (2), the Central Government has discre tion to refuse consent as required under that section. " In this application, the court is not concerned with the cor rectness or genuineness or otherwise of his claim or asser tion, except perhaps prima facie maintainability. What concerns this Court is whether the. grievances of the citi zen of this country have been properly and legally dealt with. Immunity of foreign States to be sued in the domestic forum of another State was and perhaps still is part of the general international law and international order and it is not necessary for the present purpose to consider its ori gin, development and the trends in different countries. As Professor H. Lauterpacht writes in "The British Yearbook of International Law 1951" (Volume 28) on "The Problem of Jurisdictional Immunities of Foreign States" at page 230 the assumption of jurisdiction over foreign states by the domes tic court was considered at one point of time to be contrary to the dignity of the foreign states and as such inconsist ent with the international courtesy and the amity of inter national relations. This has been in the past a persistent theme of judicial decisions. It may be noted that in so far as the doctrine of immunity owed its acceptance to the decisions of the courts of the United States it is explained to some extent by the fact that it was by reference to dignity of the states of the Union that their immunity from suit was urged insistently and repetitiously. During the debates preceding the adoption of the Virginian Convention in 1978, 120 John Marshall stressed the element of indignity inflicted upon a state by making it a defendant in an action. (Elliot, Debates 2nd Ed. 1836, page 555). It may be of historical amusement specially in the context of Indian Constitution and the growth and the history of the Indian Constitution to note that in the leading case of Chisholm vs Georgia, Dall, Page 419, 425(US) 1793, the main argument for the defendant state was that it was a 'degradation of sovereignty in the states to submit to the supreme judiciary of the United States '. The courts of the United States have gone to the length of relying on the argument of dignity in the matter of immunity of foreign states from taxation. In England, 'dignity ', coupled or identified with 'independence ', played an important part as an explanation of the doctrine of immunity of foreign states. Esher L.J. in The Parlement Beige (1880) L.R. 5P.D. 197,207 had observed: "From all these authorities it seems to us, although other reasons have sometimes been suggested, that the real principle on which the exemption of every sovereign from the jurisdiction of every Court has been deduced is that the exercise of such jurisdiction would be incompatible with his regal dignity that is to say, with his absolute independence of every superior authority. " In the said case, Lord Justice Brett at pages 2 14, 220 of the report referred variously to 'independence and dignity ' and to 'equality and independence ' as the basis of immunity. To the same effect are the observations of Lord Macmillan in Cristina, at 498. According to Professor Lauterpacht these strained emanations of the notion of dignity were an archaic survival and therefore these could not and should not continue as a rational basis of immunity. The legal development of this aspect has been discussed by Sompong Sucharitkul in "State Immunities and Trading Activities in International Law". Professor H. Lauterpacht has also discussed this aspect in the said article "The Problem of Jurisdictional Immunities of Foreign States" in "The British Year Book of International Law 1951 . The problem was also discussed by several High Courts and this Court. These have been noted in the Bench decision of the Calcutta High Court in United Arab Republic and another vs Mirza Ali Akbar Kashani, AIR 1962 Calcutta 387. In India where rule of law prevails, the foreign State ought to be entitled to such immunities but to no more as are enjoyed by the I domestic State before its own Tribu nal. This was observed by Ray, J. 121 sitting singly, as the Chief Justice of India then was, in Mirza Ali Akbar Kashani vs United Arab Republic and another, AIR 1960 Calcutta 768. Lord Denning in Rahimtoola vs Nizam of Hyderabad and Another, [1958] Appeal Cases 379 at 418 observed in the context of English courts: "There is no reason why we should grant to the departments or agencies of foreign Governments an immunity which we do not grant our own, provided always that the matter in dispute arises within the jurisdiction of our courts and is properly cognizable by them". Lord Denning noted in the said decision as early as 1957 that among the decisions of the English courts, one would not find consistency on this aspect. Lord Denning was of the view that there was no uniform practice or uniform rule. It may incidentally be noted that this was the opinion of Lord Denning expressed in the House of Lords. Viscount Simonds in his opinion observed that he should not be taken to have assented to the views of Lord Denning upon a number of questions and authorities in regard to which the House of Lords had not the benefit of the arguments of counsel or the judgments of the courts below. It is instructive to note what Lord Denning had to say on matters on which he had expressed views without the help of counsel of the parties. Lord Denning concluded at pages 423 424 of the report as follows: "My Lords, I acknowledge that, in the course of this opinion, I have considered some ques tions and authorities which were not mentioned by counsel. I am sure they gave all the help they could and I have only gone into it fur ther because the law on this subject is of great consequence and, as applied at present, it is held by many to be unsatisfactory. I venture to think that if there is one place where it should be reconsidered on principle without being tied to particular precedents of a period that is past it is here in this House: and if there is one time for it to be done, it is now, when the oppor tunity offers, before the law gets any more enmeshed in its own net. This I have tried to do. Whatever the outcome, I hope I may say, as Holt C.J. once did after he had done much research on his own: "I have stirred "these points, which wiser heads in time may settle." (Emphasis supplied). 122 With the observations of Lord Denning on the question of immunity of the foreign states, the other Law Lords disassociated themselves. Mr. Justice Bachawat, speaking for the Division Bench of the Calcutta High Court, rejected the contention urged by counsel in United Arab Republic and another vs Mirza Ali Akbar Kashani (supra) . that the foreign State enjoyed the same immunity as a domestic state enjoyed and no more. This decision came up in appeal before this Court in Mirza Ali Akbar Kashani vs United Arab Republic and Anr,, 19 and this Court upheld the Bench decision of the Calcutta High Court and held that section 86(1) of the Code of Civil Procedure as it stood at the relevant time was the statutory provision coveting a field which would otherwise be covered by the doctrine of immunity under International Law and save and except in accordance with the procedure indi cated in section 86 of the Code a suit against a foreign State would not lie. Section 86 at the material time controlled the suits against foreign States and provided that no foreign state might be sued in any Court otherwise competent to try the suit except with the consent of the Central Govern ment certified in writing by a Secretary to that Government save and except, certain specified type of suits, with which we are not concerned in this appeal. Sub section (2) of section 86 of the Code stipulates inter alia, that no such sanction shall be given, unless the foreign State is in possession of immova ble property situate within those limits and is to be sued with reference to such property or for money charged thereon or by itself or another trade within the local limits of the jurisdiction of the courts in India. In this case the petitioner had a right to carry on the work of maintenance and repairs in this country. This right is granted to him under the Constitution and he trades within the local limits of the courts in India and the foreign State which he wants to sue has immovable property situate within the limits of this country. There is dispute about the petitioner 's claim. That dispute has not been judicially determined. It has not been held that the claim of the petitioner is frivolous. In that view of the matter, it appears to us that a foreign State in this country if it fulfils the conditions stipulated in sub section (2) of section 86 of the Code would be liable to be sued in this country. That would be in conformity with the principles of inter national law as recognised as part of our domestic law and in accordance with our Con stitution and human fights. the power given to the Central Government must not be exercised arbitrarily or on whimsical grounds but upon proper reasons and grounds. The order merely states that the 123 Government could not grant the permission to sue the State of Algeria on political grounds. In respect of a building where a masonary work was supervised by a contractor or an archi tect, how the dignity of a foreign. state or relationship between the two countries would be jeopardised or undermined or endangered, it is difficult to comprehend or understand from this reason nor are the reasons explained or demonstrated in the counter affidavit filed on behalf of the respondent Government. The reasons given in the counter affidavit on the other hand are different namely (a) the gov ernment found no prima facie ground and (b) the claim was outside the provisions of sec tion 86 of the Code of Civil Procedure. The second ground now stated is patently erroneous and contradictory to the ground mentioned in the letter dated 26th November, 1983. One should have thought that the political rela tionship between the two countries would be better served and the image of a foreign State be better established if citizens ' grievances are judicially investigated. This would also be in consonance with human rights. Sub section (6) of section 86 enjoins that opportunity being given before passing of the order. There is dispute in this application as to whether such reasonable opportunity was given. The respondent Union of India asserts that such opportunity was given. No satisfac tory evidence of such opportunity being given was produced before us. The law on this aspect of sovereign immu nity in England is regulated by the State Immunity Act, 1978 which introduced or con ferred a number of exceptions to the basic rule of immunity. Although the Act .was de signed in part to implement the European Convention of State Immunity, it goes consid erably further than the Convention in re stricting immunities See in this connection Diecy & Morris 'The Conflict of Laws, ' 10th Edition page 157 (Volume 1). Dr. Gauri Shankar had drawn our attention to Maharaj Kumar Tokendra Bir Singh vs Secre tary, to the Government of India, Ministry of Home Affairs and another, A.I.R. 1964 S.C. 1663 which deals with the conditions under which sanction under section 87B of the Code are obtained and observed that in granting the consent, the Central Government was not to adjudicate upon the correctness of the claim. The Court noted that the power conferred on the Central Government to refuse to accord consent to the proposed suit shall be careful ly exercised. These principles would be ap plicable to the facts of this case. It is true that these provisions both of sections 86 and 87 are intended to save the foreign states from harassment which would be 124 caused by the institution of a suit but except in cases where the claim appears to be frivu lous patently, the Central Government should normally accord consent or give sanction against foreign states unless there are cogent political and other reasons. Normally, howev er, it is not the function of the Central Government to attempt to adjudicate upon the merits of the case intended to be made by the litigants in their proposed suits. It is the function of the courts of competent jurisdic tion and the Central Government cannot under section 86 of the Code usurp that function. The power given to the Central Government must be exercised in accordance with the principles of natural justice and in consonance with the principle that reasons must appear from the order. We may note that in the counter affida vit we do not find any such cogent reasons or due consideration. It is well to bear in mind the two princi ples on which sovereign immunity rest. So far as the principle expressed in maxim par in parem non habet jurisdictionem is concerned with the status of equality. The other princi ple on which immunity is based is that of non intervention in the internal affairs of other states. See in this connection Brownlie "Principles of Public International Law" Third Edition 322 325. Much has happened in differ ent States since Marshall, C.J. of the United States in The Schooner Exchange vs Mc Faddon, ; ; Green, p. 237 Briggs, p. 413; Bishop, p. 659 explained the principle and said that a state within its own territory as being "necessarily exclusive and absolute". In the days of international trade and com merce, international interdependence and international opening of embassies, in grant ing sanction the growth of a national law in this aspect has to be borne in mind. The interpretation of the provisions of Code of Civil Procedure must be in consonance with the basic principles of the Indian Constitution. The expression 'political ground ' used in the communication of the Government noted before covers a wide range as explained in Aiyar 's Law Lexicon page 986. It connotes without further particulars vague and fanciful attitude. Corpus Juris Secundum Vol. 48 page 28 at pages 30 to 35 deals with the various kinds of remedies by a citizen against foreign state. In granting of sanction or refusing sanction under section 86, the Central Government must bear these factors in mind. In this case there is no provision of any appeal from the order of the Central Govern ment in either granting or refusing to grant sanc 125 tion under section 86 of the Code. This sanc tion or lack of sanction may, however, be questioned in the appropriate proceedings in court but inasmuch as there is no provision of appeal, it is necessary that there should be an objective evaluation and examination by the appropriate authority of relevant and material factors in exercising its jurisdiction under section 86 by the Central Government. There is an implicit requirement of observance of the principles of natural justice and also the implicit requirement that decision must be expressed in such a manner that reasons can be spelled out from such decision. Though this is an administrative order in a case of this nature, there should be reasons. If the admin istrative authorities are enjoined to decide the rights of the parties, it is essential that such administrative authority should accord fair and proper hearing to the person to be affected by the order and give suffi ciently clear and explicit reasons. Such reasons must be on relevant material factors objectively considered There is no claim of any privilege that disclosure of reasons would undermine the political or national interest of the country. In the aforesaid view of the matter we order as follows: 1. Order dated 26th November, 1983 at Annexure 4 to this Petition ' tion is set aside; 2. Union of India is directed to reconsider the matter; 3. The Central Government should also explore the possibilities with Algerian au thority of mutual settlement either by arbi tration or by other accepted legal norms; 4. The Union of India should pass rea soned order in accordance with the principle of natural justice and keeping in view ' the trend and the development of the international law as noted hereinbefore We further direct that the Central Gov ernment in considering the question of accord of sanction should ignore the limitation of time that may have lapsed in view of the action taken in obtaining the consent in accordance with the principles of the Limita tion Act, 1963. As the petitioner is appearing in person the Union of India should ensure in considering the case of the petitioner giving him proper legal assistance The writ petition is disposed of in the aforesaid manner.

The appellant, an Indian national who had undertaken general maintenance work and repairs at the Embassy of Algeria and at the residence of the then ambassador in New Delhi in the year 1976, in order to recover certain alleged payments due from the Embassy sought the consent of the Central Government under section 86(4)(aa) of the Code of Civil Procedure which was refused on "political grounds". Hence the writ petition by the aggrieved citizen. Allowing the petition, the Court, HELD: 1.1 Immunity of foreign States to he sued in the domestic forum of another State was and still is part of the general international law and international order. In India where the rule of law prevails, the foreign State ought to he entitled to such immunities but to no more as are enjoyed by the domestic state before its own Tribunal. [119E, 120H] Mirza Ali Akbar Kashani vs United Arab Republic and Anr., ; , followed. Cristina at 498; and Rahimtoola vs Nizam of Hyderabad and Anr., 1958 Appeal Cases 379 at 418, quoted with approval. Mirza Ali Akbar Kashani vs United Arab Republic and Anr., AIR 960 Calcutta 768, approved. 115 1.2 Indian Constitution guarantees the right of a citi zen to carry on his business and carry on trade freely subject to certain limitations as contained in the relevant provisions of the Constitution. In the instant case, the petitioner had the right to be paid his reasonable remmuner ation or dues in accordance with the law subject to the bargain between the parties and subject further to any reasonable prohibitions or restrictions under the law of the country. The disputes that has arisen have to he resolved both under the principles of Lex Loci Contractus and lex Situs. Since the disputes have not been judicially deter mined nor the claim held frivolous, a foreign State in this country if it fulfills the conditions stipulated in sub section (2) of section 86 of the Code of Civil Procedure would he liable to he sued. That would be in conformity with the Principles of international law as recognised as part of our domestic law and in accordance with the Indian Constitu tion and human rights. [118G 119B, 122G] 1.3 It is true that the provisions both of sections 86 and 87 of the Code of Civil Procedure are intended to save the foreign states from harassment which would he caused by the institution of a suit but except in cases where the claim appears to he frivulous patently, the Central Govern ment should normally accord consent or give sanction against foreign states unless there are cogent political and other reasons. Normally, however, it is not the function of the Central Government to attempt to adjudicate upon the merits of the case intended to be made by the litigants in their proposed suits. It is the function of the courts of compe tent jurisdiction and the Central Government cannot under section 86 of the Code usurp that function. The power given to the Central Government must he exercised in accordance with the principles of natural justice and in consonance with the principle that reasons must appear from the order. [123H 124C] Maharaj Kumar Tokendra Bir Singh vs Secretary, to the Government of India, Ministry of Home Affairs and Anr., , followed. 1.4 There is no provision of any appeal from the order of the Central Government in either granting or refusing to grant sanction under section 86 of the Code. This sanction or lack of sanction may, however, be questioned in the appropriate proceedings in court but inasmuch as there is no provision of appeal, it is necessary that there should he on objective evaluation and examination by the appropriate authority of relevant and material factors in exercising its jurisdiction under section 86 by the Central Government. There is an implicit re 116 quirement of observance of the Principles of natural justice and also the implicit requirement that decision must be expressed in such a manner that reasons can be spelled out from such decision. [124H I25B] 1.5 Though this is an administrative order, in a case of this nature, there should be reasons. If the administrative authorities are enjoined to decide the rights of the par ties, it is essential that such administrative authority should accord fair and proper bearing to the person to be affected by the order and give sufficiently clear and ex plicit reasons. Such reasons must be on relevant material factors objectively considered. There is no claim of any privilege that disclosure of reasons would undermine the political or national interest of the country. [125C] 1.6 The expression 'political ground ' covers a wide range and connotes without further particulars vague and fanciful attitude. The refusal by the Central Government to accord its sanction to sue the foreign ambassador, in this case, is not in accordance with law.[124F, 125C]

ION: Criminal Appeal No. 76 of 1956. Appeal from the judgment and order dated August 27, 1954, of the Allahabad High Court in Criminal Misc. Writ No. 20 of 1954. 823 K. L. Misra, Advocate General for the State of Uttar Pradesh. Mathur and C. P. Lal, for the appellants. N. section Bindra, for the respondent.1960. January 21. The Judgment of the Court was delivered by SUBBA RAO J. This appeal raises the question of interpretation of the words " in the interest of public order " in article 19(2) of the Constitution. The facts are not in dispute and they lie in a small compass. The respondent, Dr. Ram Manohar Lohia, is the General Secretary of the Socialist Party of India. The U. P. Government enhanced the irrigation rates for water supplied from canals to cultivators. The party to which the respondent belongs resolved to start an agitation against the said enhancement for the alleged reason that it placed an unbearable burden upon the cultivators. Pursuant to the policy of his party, the respondent visited Farrukhabad and addressed two public meetings wherein he made speeches instigating the audience not to pay enhanced irrigation rates to the Government. On July 4, 1954, at 10 p.m. he was arrested and produced before the City Magistrate, Farrukhabad, who remanded him for two days. After investigation, the Station officer, Kaimganj, filed a charge sheet against the respondent before Sri P. R. Gupta, a Judicial Officer at Farrukliabad. On July 6, 1954, the Magistrate went to the jail to try the case against the respondent, but the latter took objection to the trial being held in the jail premises. When the Magistrate insisted upon proceeding with the trial, the respondent obtained an adjournment on the ground that he would like to move the High Court for transfer of the case from the file of the said Magistrate. Thereafter the respondent filed a petition before the High Court for a writ of habeas corpus on the ground, among others, that section 3 of the U. P. Special Powers Act (Act No. XIV of 1932), 1932, (hereinafter called the Act) was void under the Constitution. 105 824 In the first instance the petition came up for disposal before a division bench of the High Court at Allahabad consisting of Desai and Chaturvedi, Elaborate arguments were addressed before them covering a wide field. The learned Judges delivered differing judgments expressing their views on the main points raised before them. They referred the matter to the Chief Justice for obtaining the opinion of a third Judge on the following two points: " (i) Was the ' provision of section 3 of the U. P. Special Powers Act of 1932 making it penal for a person by spoken words to instigate class of persons not to pay dues recoverable as arrears of land revenue, inconsistent with article 19(1)(a) of the Constitution on the 26th of January, 1950 ? " and " (ii) if so, was it in the interests of public order ? ". The petition was placed before Agarwala, J., as a third Judge, who agreeing with Desai, J., gave the following answers to the questions referred to him : Question No. (i). "The provision of section 's of the U. P. Special Powers Act, 1932, making it penal for a person by spoken words to instigate a class of persons not to pay dues recoverable as arrears of land revenue, was inconsistent with Article 19(1)(a) of the Constitution on the 26th January, 1950." Question No. (ii). " The restrictions imposed by section 3 of the U. P. Special Powers Act, 1932, were not in the interests of public order. " In the usual course the matter was placed before the two learned Judges who first heard the case and they, on the basis of the majority view, allowed the petition and directed the respondent to be released. The State has preferred the present appeal against the said order of the High Court. The learned Advocate General, appearing for the appellant. stated before us that be did not propose to canvass the correctness of the majority view on one of the important points raised in the case, namely, that the effect of the passing of the Act did not ipso facto deprive a citizen of his freedom of speech guaranteed. under article 19(1) (a) of the Constitution and its validity should be tested by the provisions 825 of article 19(2) thereof. He did not. concede the validity of the finding in this regard but assumed its correctness for the purpose of this case. Nothing further, therefore, need be mentioned on this point. The gist of the argument of the learned Advocate General may be stated thus: The legislature can make laws placing reasonable restrictions on the rights of a citizen to freedom of speech and expression in the interests of public order among other grounds. The words "in the interests of public order" are wider in connotation than the words " for the maintenance of public order ". Laws are rules made by the legislature for the governance of the people in the State which they are bound to obey, and they are enacted to keep public peace and order. The avowed object of section 3 of the Act was to prevent persons from instigating others to break the laws imposing a liability upon a person or class of persons to pay taxes and other dues to the State, any authority or to any land owner. The impugned section was enacted in the interests of public order and therefore the section was protected by article 19(2) of the Constitution. The learned Advocate General pointed out that the object of the State in preferring this appeal was to obtain the decision of this Court on the question of constitutional validity of section 3 of the Act and not to pursue the matter against Dr. Lohia. The respondent was not present at the time the appeal was heard and was not represented by an advocate. As the question raised was an important one, we requested Mr. N. section Bindra to assist the Court, and he kindly agreed to do so. He supported the majority view of the High Court. We record our thanks for his assistance. At the outset it would not be out of place to notice briefly the history of the Act. The Act was originally passed in the year 1932 during the British rule. In an attempt to offset the campaign of non payment of taxes and other forms of agitation resorted to by the Congress Party, originally it was put on the statute book for one year; but in 1940 when the State was under the " Governor 's rule ", the Act was made 826 permanent. Under the Act, sections 1 and 2 came into effect immediately on the passing of the Act and section 1(2) enabled the Government by notification to extend all or any of the remaining sections to any district or to any part of a district in the United Provinces. After the Constitution, the Act was not repealed but was allowed to continue, with necessary adaptations, in the statue book. Between April and June, 1954, the State Government extended the provisions of the Act to 33 districts including Farrukhabad district. Now lot us look at the provisions of the Act to ascertain its scope and field of operation. The preamble discloses that it was enacted in 1932 to make provision against and to take powers to deal with instigation to the illegal refusal of the payment of certain liablities and section 2 defines " liablity " to mean " land revenue or any sum recoverable as arrears of land revenue or any tax, rate, cess or other dues or amount payable to Government or to any local authority, or rent of agricultural land or anything recoverable as arrears of or along with such rent ". Section 3 prescribes the punishment for instigation to the non payment of a liability. As the argument centres round this section, it will be convenient to read the same: Section 3: Whoever, by word, either spoken or written, or by signs or by visible representations, or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act, with intent or knowing it to be likely that any words, signs or visible representations con. taining such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both. " Section 4 says that any person to whom an arrear of liability is due may apply to the Collector to realize it and the Collector is authorized to realize the same 827 as an arrear of land revenue. The impugned section may be dissected into the following components (i) whoever by word, either spoken or written, or by signs or by visible representations or otherwise, (ii) instigates, (iii) expressly or by implication,(iv) any person or class of persons, (v) not to pay any liability, (vi) to defer payment of any liability, (vii) does an act with intent that any words etc. shall be communicated to any person or class of persons, (viii) with the knowledge that it is likely that such words etc. shall be communicated to any person or class of persons, (ix) such communication may be made directly, or indirectly and (x) shall be punished with imprisonment or with fine or with both. Under this section a wide net has been cast to catch in a variety of acts of instigation ranging from friendly advice to a systematic propaganda not to pay or to defer payment of liability to Government, any authority or to any person to whom rent is payable in respect of agricultural land. The meaning of this section, read along with sections 2 and 4, can be ascertained more clearly by illustration than by definition. (1) A instigates B not to pay any liability to Government, any authority or to any land owner; (2) A instigates B to defer payment of any liability to Government, any authority or landlord; (3) A instigates a class of persons to do the same; (4) A may do any one of the foregoing things not only by word, but also by signs, visible representations or otherwise; (5) A may do any one of the things bona fide either to get the claim decided in a Court of law or to gain time to get the law changed; (6) A may instigate B not to pay any amount due to Government or to any authority, but the said amount can be recovered by the authority concerned as arrears of land revenue; (7) A may tell C with intention or with knowledge that the said instigation may be communicated to B so that he may not pay; (8) any statement by A to C may imply such instigation. In its wide amplitude the section takes in the innocent and the guilty persons, bona fide and mala fide advice, individuals and class, abstention from payment and deferment of payment, 828 expressed or implied instigation, indirect or direct instigation, liability due not only to Government but to any authority or landholder. In short, no person, whether legal adviser or a friend or a well wisher of a person instigated can escape the tentacles of this section, though in fact the rent due has been collected through coercive process or otherwise. We shall now proceed to consider the constitutional validity of this section. The material portions of the relevant provisions of the Constitution may now be read: Article 19: " (1) All citizens shall have the right (a) to freedom of speech and expression; (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State, friendly relations with foreign States, public order, decenc or morality or in relation to contempt of court,defamation or incitement to an offence. " Clause (2) of article 19 was amended by the Constitution (First Amendment) Act, 1951. By this amendment several new grounds of restrictions upon the freedom of speech have been introduced, such as friendly relations with foreign States, public order and incitement to an offence. It is self evident and common place that freedom of speech is one of the bulwarks of a democratic form of Government. It is equally obvious that freedom of speech can only thrive in an orderly society. Clause (2) of article 19, therefore, does not affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right of freedom of speech in the interest of public order, among others. To sustain the existing law or a new law made by the State under cl. (2) of article 19, so far as it is relevant to the present enquiry, two conditions should be 829 complied with, viz., (i) the restrictions imposed must be reasonable; and (ii) they should be in the interests of public order. Before we consider the scope of tile word, , of limitation, " reasonable restrictions" and " in the interests of ", it is necessary to ascertain the true meaning of the expression public order " in the said clause. The expression public order" has a very wide connotation. Order is the basic need in any organised society. It implies the orderly state of society or community in which citizens can peacefully pursue their normal activities of life. In the words of an eminent Judge of the Supreme Court of America " the essential rights are subject to the, elementary need for order without which the guarantee of those rights would be a mockery ". The expression has not been define(] in the Constitution, but it occurs in List II of its Seventh Schedule and is also inserted by the Constitution (First Amendment) Act, 1951 in el. (2) of article 19. The sense in which it is used in article 19 can only be appreciates by ascertaining how the Article was construed before it was inserted therein and what was the defect to remedy which the Parliament inserted the same by the said amendment. The impact of el. (2) of article 19 on article 19(1)(a) before the said amendment was subject to judicial scrutiny by this Court in Romesh Thappar vs The State of Madras(l). There the Government of Madras, in exercise of their powers under section 9(1 A) of the Madras Maintenance of Public Order Act, 1949, purported to issue an order whereby they imposed a ban upon the entry and circulation of the journal called " Cross .Roads " in that State. The petitioner therein contended that the said order contravened his fundamental right to freedom of speech and expression. At the time when that order was issued the (expression " public order " was not in article 19(2) of the Constitution; but the words " the security of the State " were there. In considering whether the impugned Act was made in the interests of security of the State, Patanjali Sastri, J., as he then was, after citing the observation of Stephen in his Criminal Law of England, states: (1) [1950) S.C.R. 594, 600, 601, 602, 830 "Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of gurading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could. justify curtailment of the rights to freedom of speech and expres sion. . " The learned Judge continued to state: " The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind. " The learned Judge proceeded further to state: " We, are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. " This decision establishes two propositions, viz., (i) maintenance of public order is equated with maintenance of public tranquillity; and (ii) the offences against 831 public order are divided into two categories, viz., (a) major offences affecting the security of the State, and (b) minor offences involving breach of purely local significance. This Court in Brij Bhushan vs The state of Delhi (1) followed the earlier decision in the context of section 7 (1) (c) of the East Punjab Public Safety Act, 1949. Fazl Ali, J., in his dissenting judgment gave the expression " public order " a wider meaning than that given by the majority view. The learned Judge observed at p. 612 thus: " When we approach the matter in this way, we find that while ' public disorder ' is wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group or persons, 'public unsafety (or insecurity of the State), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State. " This observation also indicates that " public order " is equated with public peace and safety. Presumably in an attempt to get over the effect of these two decisions, the expression " public order " was inserted in article 19 (2) of the Constitution by the Constitution (First Amendment) Act, 1951, with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions under cl. (2) of article 19. After the said amendment, this Court explained the scope of Romesh Thappar 's Case (1) in The state of Bihar vs shailabala Devi (). That case was concerned with the constitutional validity of section 4 (1) (a) of the Indian Press (Emergency Powers) Act, 1931. It deals with the words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence. Mahajan, J., as he then was, observed at p. 660: " The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in (1) ; (2) ; 106 832 Romesh Thappar 's case could easily have been avoided as it was avoided by Shearer J., who in very emphatic terms said as follows: "I have read and re read the judgments of the Supreme Court, and I can find nothing in them myself which bear directly on the point at issue,and leads me to think that, in their opinion, a restriction of this kind is no longer permissible. " The validity of that section came up for consideration after the Constitution (First Amendment) Act, 1951, which was expressly made retrospective, and therefore the said section clearly fell within the ambit of the words " in the interest of public order ". That apart the observations of Mahajan, J., as he then was, indicate that even without the amendment that section would have been good inasmuch as it aimed to prevent incitement to murder. The words " public order " were also understood in America and England as offences against public safety or public peace. The Supreme Court of America observed in Cantewell vs Connecticut (1) thus: "The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquillity. It includes not only violent acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. " The American decisions sanctioned a variety of restrictions on the freedom of speech in the interests of public order. They cover the entire gamut of restrictions that can be imposed under different heads in article 19(2) of our Constitution. The following summary of some of the cases of the Supreme Court of America given in a well known book on Constitutional Law illustrates the range of categories of cases covering (1) ; , 308, 833 that expression. " In the interests of public order, the State may prohibit and punish the causing of 'loud and raucousnoise ' in streets and public places by means of sound amplifying instruments, regulate the hours and place of public discussion, and the use of the public streets for the purpose of exercising freedom of speech; provide for the expulsion of hecklers from meetings and assemblies, punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere 'public inconvenience, annoyance or unrest '. " In England also Acts like Public Order Act, 1936, Theatres Act, 1843 were passed: the former making it an offence to use threatening, abusive or insulting words or behaviour in any public place or at any public meeting with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused, and the latter was enacted to authorise the Lord Chamberlain to prohibit any stage play whenever he thought its public performance would militate against good manners, decorum and the preservation of the public peace. The reason underlying all the decisions is that if the freedom of speech was not restricted in the manner the relevant Acts did, public safety and tranquillity in the State would be affected. But in India under article 19(2) this wide concept of" public order " is split up under different heads. It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head " public order " in its most comprehensive sense. But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. " Public order " is therefore something which is demarcated from the others. In that limited sense, particularly in view of, the history of the amendment, it can be pustulated that "public order " 834 is synonymous with public peace, safety and tranquillity. The next question is what do the words " interest of public order " mean ? The learned Advocate General contends that the phrase "in the interest of public order" is of a wider connotation than the words "for the maintenance of public order" and,therefore, any breach of law which may have the tendency, however remote, to disturb the public order would be covered by the said phrase. Support is Sought to be drawn for this wide proposition from the judgment of this Court in Ramji Lal Modi vs The State of U.P. (1). It is not necessary to state the facts of that case, as reliance is placed only on the observations of Das, C.J., at p. 865, which read: "It will be noticed that the language employed in the amended clause is "in the interests of" and not "for the maintenance of". As one of us pointed out in Debi Saron vs The State of Bihar (2), the expression "in the interests of" makes the ambit of protection very wide. A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order. " The learned Chief Justice again in Virendra vs The State of Punjab (3) observed, at p. 317, much to the same effect: "As has been explained by this Court in Ramji Lal Modi vs The State of U.P. (1), the words "in the interests of" are words of great amplitude and are much wider than the words "for the maintenance of. " The expression "in the interests of" makes the ambit of the protection very wide, for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and yet it may have been enacted "in the interests of" the public order or the general public as the case may be. " We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order (1) ; (2) A.I R. (1954) Pat 254 (3) ; 835 would be sufficient to sustain its validity. The learned Chief Justice was only making a distinction between an Act which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied therefrom ; and between an Act that directly maintained public order and that indirectly brought about the same result. The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act. Apart from the said phrase, another limitation in the clause, namely, that the restrictions shall be reasonable, brings about the same result. The word "reasonable" has been defined by this Court in more than one decision. It has been held that in order to be reasonable, "restrictions must have reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object". The restriction made "in the interests of public order" must also have reasonable relation to the object to be achieved, i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause. A full bench decision of the Federal Court in Rex vs Basudeva (1) contains some observations which give considerable assistance to construe the words. In that case, the appellant was detained in pursuance of the order made by the Government of U.P. under the U.P. Prevention of Black Marketing (Temporary Powers) Act, 1947. The question was whether the preventive detention provided for in section 3(1) (i) of the said Act was preventive detention for reasons connected with the maintenance of public order. The argument in that case ran on the same lines as in the present case. The learned Advocate General there urged that habitual black marketing in essential commodities was bound sooner or later to cause a dislocation of the machinery of controlled distribution which, in turn, might lead to breaches of the peace and that, therefore, detention with a view to prevent such black marketing was covered by the (1) A.I.R. (1950) F.C. 67 836 entry. Answering that argument, Patanjali Sastri, J.,as he then was, pointed out, at p. 69: "Activities such as these are so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot, in our opinion, fall within the purview of Entry I of List II. . .The connection contemplated must, in our view, be real and proximate. , not far fetched or problematical. " The decision, in our view, lays down the correct test. The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far fetched, hypothetical or problematical or too remote in the chain of its relation with the public order. We shall now test the impugned section, having regard to the aforesaid principles. Have the acts prohibited under section 3 any proximate connection with public safety or tranquility ? We have already analysed the provisions of section 3 of the Act. In an attempt to indicate its wide sweep, we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government, authority or a landowner is made an offence. Even innocuous speeches are prohibited by threat of punishment. There is no proximate or even forseeable connection between such instigation and the public order sought to be protected under this section. We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of, the public order. If this argument without obvious limitations be accepted, it would 837 destroy the right to freedom of speech which is the very foundation of democratic way of life. Unless there is a proximate connection between the instigation and the public order, the restriction, in our view, is neither reasonable nor is it in the interest of public order. In this view, we must strike down section 3 of the Act as infringing the fundamental right guaranteed under article 19(1)(a) of the Constitution. The learned Advocate General then contended that the section is severable and that if so severed, the section may be made to function within the limited field that stands the test of article 19(2) of the Constitution. He asks us to read the section as follows : "Whoever, by word, either spoken or written, or by signs or by visible representations, or otherwise, instigates, expressly or by implication, any class of persons not to pay or to defer payment of any liability, and whoever does any act, with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both." By so doing he argues that instigation of a class of persons only is made liable and thereby the section is rid of the vice of unconstitutionality. The doctrine of severability vis a vis the fundamental rights is sought to be supported on the basis of the wording of article 13(1) of the Constitution. Under that Article laws, in so far as they are inconsistent with the provisions of Part III, ire void only to the extent of such inconsistency. But this implies that consistent and inconsistent parts of a law are severable. This doctrine in its relation to fundamental rights was considered by this Court in three decisions. In Romesh Thapper 's case (1) such an. argument has been repelled by this Court. Patanjali Sastri, J., as he then was, stat@d the legal position thus at p. 603: (1) [1950) S.C.R. 594, 600, 601 602. 838 Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right,it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void." In Chintaman Rao vs The State of Madhya Pradesh the same principle is again restated. Mahajan, J., as he then was observed at p. 765: The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of ' its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void. " The wide reach of this principle appears to have been circumscribed to some extent in a later decision of this Court in R. M. D. Chamarbaugwalla vs The Union of India (2). In that case the constitutionality of sections 4 and 5 of the Prize Competitions Act (42 of 1955) was challenged on the ground that prize competition ' as defined in section 2(d) of the Act included not merely competitions that were of a gambling nature but also those in which success depended to a substantial degree on skill. This Court, having regard to the history of the legislation, the declared object thereof and the wording of the statute, came to the conclusion that the competitions which were Sought to be controlled and regulated by the Act were only those competitions in which success did not depend to any substantial degree on skill. That conclusion was sufficient to reject the contention raised in that case; but even on the assumption that (1) ; (2) [1957) S.C.R. 930. 839 prize competition as defined in section 2(d) of the Act included those in which success depended to substantial degree on skill as well as those in which it did not so depend, this Court elaborately considered the doctrine of severability and laid down as many as seven rules of construction. On the application of the said rules it was held that the impugned provisions were severable in their application to competitions in which success did not depend to any substantial degree on skill. The foregoing discussion yields the following results: (1) " Public order " is synonymous with public safety and tranquillity : it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State; (2) there must be proximate and reasonable nexus between the speech and the public order; (3) section 3, as it now stands, does not establish in most of the cases comprehended by it any such nexus; (4) there is a conflict of decision on the question of severability in the context of an offending provision the language whereof is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislation; one view is that it cannot be split up if there is possibility of its being applied for purposes not sanctioned by the Constitution and the other view is that such a provision is valid if it is severable in its application to an object which is clearly demarcated from other object or objects falling outside the limits of constitutionally permissible legislation; and (5) the provisions of the section are so inextricably mixed up that it is not possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it and reject the rest. It is not necessary in this case to express our preference for one or other of the foregoing decisions. Assuming that the summary of the rules of construction given in the last of the cases cited supra are correct and exhaustive, we are not satisfied that in the instant case the impugned section with the 107 840 omissions suggested by the learned Advocate General could, wholly or to any extent, be salvaged. The words of the section with the suggested omissions continue to suffer from the same vice they are subjected to without the said omissions. The Suggested omissions from the section only exclude individuals from the operation of the section and confine it to a class of persons and in other respects it is not freed from the defects already pointed out by us. In R. M. D. Chamarbaugwalla 's Case (1) the difference between two classes of competitions, namely, those that are of gambling nature and those in which success depends on skill, is clear cut and has long been recognized in legislative practice. But in the present case it is not even possible to predicate with some kind of precision the different categories of instigation falling within or without the field of constitutional prohibitions. The constitutional validity of a section cannot be made to depend upon such an uncertain factor. Whether the principle of the first two decisions is applied or that of the third is invoked, the constitutional validity of the section cannot be sustained. We, therefore, hold that section 3 of the Act is void as infringing article 19(1)(a) of the Constitution. The, entire section therefore must be struck down as invalid. If so, the prosecution of the respondent under that section is void. The learned Advocate General made an impassioned appeal to persuade us to express our view that though the present section is void on the ground that it is an unreasonable restriction on the fundamental right, in the interests of public order the State could legitimately re draft it in a way that it would conform to the provisions of article 19(2) of the Constitution. It is not this Court 's province to express or give advice or make general observations on situations that are not presented to it in a particular case. It is always open to the State to make such reasonable restrictions which are permissible under article 19(2) of the Constitution. In the result, the appeal is dismissed. Appeal dismissed.

Section 3 of the U.P. Special Powers Act, 1932 (XIV Of 1932), provided as follows: "Whoever, by word, either spoken or written, or by signs or by visible representations, or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act, with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both. " The appellant, who was prosecuted under the section for delivering speeches instigating cultivators not to pay enhanced irrigation rates to the Government, applied to the High Court for a writ of habeas corpus on the ground, amongst others, that the said section was inconsistent with article 19(1) (a) of the Constitution and as such void. The High Court decided in favour of the appellant and he was released. The State appealed to this Court and the question for determination was whether the impugned section embodied reasonable restrictions in the interests of public order and was thus protected by article 19(2) of the Constitution. Held, that even though in a comprehensive sense all the grounds specified in article 19(2) of the Constitution on which any reasonable restrictions on the right to freedom of speech must be based can be brought under the general head "public order", that expression, inserted into the Article by the Constitution (First Amendment) Act, 1951, must be demarcated from the other grounds and ordinarily read in an exclusive sense to mean public peace, safety and tranquility in contradistinction to national upheavals, such as revolution, civil strife and war, affecting the security of the State. Romesh Thappar vs The State of Madras ; , Brij Bhushan vs The State of Delhi. ; , The State of Bihar vs Shailabala Devi. ; and Cantewell vs Connecticut. ; , discussed. 822 It is well settled by decisions of this Court that in a restriction in order to be reasonable must have a reasonable relation to the object the Legislation has in view and must not go beyond it. Restrictions, therefore, meant to be in the interest of public order which have no proximate relationship or nexus with it but can be only remotely or hypothetically connected with it, cannot be reasonable within the meaning of article 19(2) of the Constitution. Rex vs Basudeva, A.I.R.(1950) F.C. 67, applied. Ramji Lal Modi vs The State of U.P. and Virendra vs The State of Punjab, ; , explained. So judged, it cannot be said that the acts prohibited under the wide and sweeping provisions of section 3 of the Act can have any proximate or even foreseeable connection with public order sought to be protected by it, and, consequently, that section, being violative of the right to freedom of speech guaranteed by article 19(1) (a) of the Constitution, must be struck down as unconstitutional. It would be incorrect to argue that since instigation by a single individual not to pay taxes might ultimately lead to a revolution resulting in distruction of public order, that instigation must have a proximate connection with public order. No fundamental rights can be restricted on such hypothetical and imaginary consideration. Nor is it possible to accept the argument that in a demo cratic set up there can be no scope for agitational approach or that any instigation to break a bad law must by itself constitute a breach of public order, for to do so without obvious limitations would be to destroy the right to freedom of speech on which democracy is founded. It is not possible to apply the doctrine of severability relating to fundamental rights as enunciated by this Court to the provisions of the impugned section, since it is not possible to precisely determine whether the various categories of instigation mentioned therein fall within or without the constitutionally permissible limits of legislation and separate the valid parts from the invalid. R.M.D. Chamarbaugwalla vs The Union of India (1957) S.C.R. 93o, explained and distinguished. Romesh Thappar vs The State of Madras ; and Chintaman Rao vs The State o Madhya Pradesh. (1950) S.C.R. 759, referred to.

N: Criminal Appeals Nos. 86 93 of 1974. From the Judgment and Order dated 25 7 73 of the Orissa High Court in Criminal Misc. Case Nos. 131 138 of 1972. D. Mukerjee and B. Parthasarthy for the Appellant. D. V. Patel and Vinoo Bhagat for the Respondent in (all the appeals). The Judgment of the Court was delivered by KAILASAM, J. These appeals are by State of Orissa by certificate granted by the Orissa High Court against the judgment in Criminal Miscellaneous Cases Nos. 131 to 138 of 1973. The eight respondents before this Court filed a batch of eight criminal miscellaneous petitions under Section 561 A/ and 562 of the Code of Criminal Procedure for a review of the orders passed by the High Court in Criminal Reference Nos. 13 and 15 to 21 of 1972 on 7 5 73, enhancing their sentence of fine of Rs. 2,000/ to one of rigorous imprisonment for six months. The facts of the case are briefly as follows: On 1 2 1967, the Vigilance police filed nine criminal cases against certain firms and their partners or proprietors under Section 20(e) of the Forward Contracts (Regulation) Act, 1952 (Act 74 of 1952). The cases were tried by the Additional District Magistrate (Judicial), Cuttack. The District Magistrate found the firms and persons, in management of the business, guilty of the offences with which they were charged and inflicted a consolidated fine of Rs. 2,000/ with the direction that, they would suffer simple imprisonment for three months in default of payment of fine. Against their conviction and sentence, the accused preferred an appeal to the Sessions Judge. The Sessions Judge, while dismissing the appeals, found that the law required imposition of a minimum sentence of fine of Rs. 1,000/ for each offence and as the sentence passed by the trial court was not in accordance with the law, he referred the matter to the High Court for passing of appropriate sentence. The accused preferred Revision Petitions against the order of the Sessions Judge. The Reference made by the Sessions Judge as well as the revision Petitions by the High Court. The High Court, while dismissing the Revision Petitions preferred by the accused, accepted the Reference by the Sessions Judge and enhanced the sentence so far as the firms are concerned, to a sum of Rs. 3,900/ at the rate of rupees one thousand and three hundred for each offence. As regards the Managers or the managing partners, the High Court 1117 sentenced them to six months rigorous imprisonment, i.e., two months for each deal The firms paid up their fines but the persons, who were awarded substantive sentence of imprisonment, filed criminal miscellaneous petitions before the High Court for a review of its order. The High Court accepted the petitions for review and recalled its previous judgment imposing substantive sentence of six months rigorous imprisonment on the petitioners but imposed a fine of Rs. 3,900/ at the rate of Rs. 1,300/ for each of the offence on each of the petitioners who are the respondents in this Court. Against the decision of the High Court, the State of Orissa applied for a certificate for preferring an appeal to this Court which was granted. Before the High Court it was urged that the petitioners were not given notice of enhancement in the Reference cases in respect of fines imposed. It was submitted that the notice was based on the recommendation of the learned Sessions Judge to pass appropriate sentence, but there was no indication in the notice, that the sentence would be enhanced to a substantive term of imprisonment. The order of Reference by the Sessions Judge provided that, the sentence imposed by the trial court was illegal and therefore while maintaining the convictions, he set aside the consolidated sentence of fine and referred the matter to the High Court for passing appropriate sentences. The learned Judge who dealt with the References made by the Sessions Judge passed an order in the following terms : "Admit. Issue notice fixing 20.3.72 for appearance. The acceptance of the reference may have the effect of enhancement of the sentence. Let clear notice be given to show cause against enhancement of sentence. " In pursuance of the order, the High Court sent a notice, directing the respondents to appear and show cause as to why the sentences, inflicted on them, should not be enhanced. The submission, that was made on behalf of the respondents, was that, neither the parties nor the lawyers ever took it, that the notices were comprehensive notices, which would include enhancement of sentence by way of converting the fine into imprisonment. The High Court accepted the plea on behalf of the respondent that the Criminal References read with the revisions would establish that the petitioners merely were given notice to show cause why the sentence of fine should not be regularised by way of enhancement of fine and that the notices ruled out enhancement by way of imprisonment since in this setting the notices were specifically in respect of fine and therefore imposition of sentence of imprisonment. 1118 was without jurisdiction. We do not find any basis for the conclusion arrived at by the High Court. The notice, under Section 439 (2) of the Criminal Procedure Code requires that no order, under Section 439, shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence, and sub section (6) states that "notwithstanding anything contained in this section, any convicted person, to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction. The order of the learned Judge by whom the reference was received and the notice issued by the High Court clearly show that, the respondents were asked to show cause why their sentence should not be enhanced. The view, taken by the High Court, that notice was only to show cause why the sentence should not be regularised by enhancement of the fine and not to a term of imprisonment is not borne out by the record. Mr. Mukherjee, learned counsel appearing for the State of Orissa submitted that, apart from the merits, the High Court had no jurisdiction to review its own judgment, and as such, the order of the High Court passed in review will have to be set aside as being without jurisdiction. On behalf of the respondent, Mr. D. J. Patel, submitted that, so far as the High Court is concerned, it has ample jurisdiction under Section 561 (A) and other provisions of the Code to review its own judgment. Mr. Patel further submitted that Section 369 of the Criminal Procedure Code is not applicable to judgments on appeal passed by the High Court, much less to judgments of the High Court passed in exercise of its criminal jurisdiction under Section 439. To support this contention, the learned counsel submitted that Chapter XXVI refers only to judgments of the trial court and cannot be made applicable to appellate judgments. We referred to Section 424 which provides that, the rules, contained in Chapter XXVI as to the judgement of criminal court of original jurisdiction, shall apply, so far as may be applicable to the judgment to any appellate court other than the High Court. The plea is that if Section 369 could be understood as being applicable to appellate judgments of the High Court also, there is no need for providing separately for the applicability of Chapter XXVI to the judgments of appellate courts other than the High Courts. Reliance was placed on Section 430 for the submission that the finality provided for judgments, orders passed by the appellate court would also indicate that, Section 369 is not intended to apply to judgments of the appellate courts and to the High Court in appeals and in revisions. In order to appreciate the contention of the parties the relevant sections may be set out. 1119 Section 369 as enacted in 1898, provided that "No Court other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in Section 395 and 484 or to correct a clerical error. Despite the express exclusion of the High Courts from the operation of this provision, it was held that the High Court had no implied power to alter or review their own judgments whether under Section 369 or under Section 439 or otherwise. It was accordingly proposed in 1921 that the words "other than a High Court" should be omitted to make it clear that Section 369 conferred no such power on the High Courts, as it was noticed that one or two other sections of the Code besides 395 and 484 and clause 26 of the Letters Patent of the High Courts empowered the High Courts to revise their judgments. Hence the Section was redrafted. Section 369 of the Code of Criminal Procedure 1898 reads as follows : "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument constitute such High Court, no court, when it has signed its judgment shall alter or review the same, except to correct a clerical error". Under the Code of Criminal Procedure (Act 2 of 1974) the new Section 362 provides "Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error". The words "or in the case of a High Court, by the Letters Patent or other instrument constituting such High Court" which were found in the corresponding Section 369 of the old Code have been omitted in the present section. Hence an alteration or review by a High Court would be permissible as in the case of other Courts, where provision therefore is made in this Code or by any other law for the time being in force. A reading of Section 369 discloses that the section prohibits all courts when it has signed its judgment to alter review the same except to correct a clerical error. While, regarding other courts, the prohibitions subject to any provision in the Code of. . or any provision of any other law in force, in the case of the High Court it is provided that the prohibition will be subject to the Letters Patent or other instrument constituting such High Court. Thus so far as the High Court is concerned, the prohibition against alteration and the 1120 review of the judgment will be subject to the Letters Patent or other instrument constituting such High Court. The Letters Patent of the High Courts of Bombay, Calcutta and Madras provide that the High Courts will have original criminal jurisdiction as well as the appellate criminal jurisdiction as provided by clauses 22 to 24. Clause 26 provides that such point or points of law reserved under clause 25 or on its being certified by the Advocate General that there is an error and that the points should be further considered, the High Court shall have full power to review the case. No other provision is found in the Letters Patent enabling the High Court to review its own judgment. No other instrument, relating to the power to review, in the constitution of the High Court, was brought to our notice. Giving the plain meaning to Section 369, it is clear that no court, subject to exceptions made in the section, shall alter or review its judgment. Two other sections were relied on by the defence as providing an exception to the rule laid down in Section 369. They are Sections 424 and 430 of Code of Criminal Procedure. Section 424 runs as follows: "424. The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any appellate Court other than a High Court: Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered". The first part of Section 424 provides that the rules, contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction, shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court. Chapter XXVI relates to the judgment. Section 366 is the first section in the Chapter. It prescribes the mode of delivering judgment, i.e. it shall be delivered in the open court and in the language of the court. Sub Section (2) provides that the accused shall be required to attend, to hear judgment delivered. Section 367 prescribes the language and contents of the judgment and provides that the judgment may be in the alternative. When read with Section 424, it is seen that Sections 366, 367 and 368, which relate to the judgment of a criminal court of original jurisdiction, are made applicable, as far as may be to the judgment of the appellate court other than the High Court. The effect of Section 424 Crl. P.C. would be that the judgment of the appellate court should, as far as applicable, be in accordance with the requirements of Sections 366, 367 and 368 of the Code. This rule is not made applicable 1121 to a High Court hearing an appeal. The proviso to Section 424 is significant, in that, it states that unless the appellate court otherwise directs, the accused, shall not be brought up or required to attend to hear the judgment delivered. This proviso makes an exception to the requirement, that is found in Section 366(2), which requires that the accused should attend when the judgment is delivered. Section 367 prescribes the language of the judgment and requires the points for determination, the decision thereon, the reasons for the decision that it shall be dated and signed in open court. While Section 369 prohibits altering or reviewing the judgment after a court has signed its judgment, section 424 requires that the judgment of the appellate court shall, as far as applicable, be in accordance with Sections 366, 367 and 368 of the Criminal Procedure Code, which deals with the trial court. Sections 369 and 424 do not restrict the prohibition under Section 369 to the trial court alone. The purpose of Section 424 is to prescribe mode of delivering of judgment, the language and the contents of the judgment while Section 369 is general in its application and prohibits all courts from altering or reviewing its judgment when once it has signed it. The second section, that is relied on, is Section 430. Section 430 provides, "When the judgment passed by an appellate court upon appeal shall be final except in the cases provided for in Section 417 and Chapter XXXII". The section deals with the finality of orders on appeal. An exception is made in the case of a judgment under Section 417 that is, in an appeal by a public prosecutor against an order of acquittal, whether made by the trial court or the appellate court. So also, the provisions of Chapter XXXII is excepted in that the judgment of an appellate court will not be final when provision is made for reference and revision. Neither Section 424 nor Section 430 deal with the prohibition imposed under Section 369 prohibiting the court from altering or reviewing its judgment when once it has signed it. It was next submitted that in any event Section 561 A is wide enough to include a power of review by the High Court. Section 561 A of Criminal Procedure Code runs as follows : "561A. Nothing in this Code shall be deemed to limit or effect the inherent power of the High Court to make such orders, as may be necessary, to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". The inherent power of the High Court is restricted to making such orders, as may be necessary, to give effect to any order, under the Code or to prevent abuse of the process of any court or otherwise to 1122 secure the ends of justice. The scope of the section has been explained. In the two decisions of the Privy Council, which have been uniformly followed by this Court. In Emperor vs Khwaja Nazir Ahmad the Privy Council, repelling the view that Section 561A of Criminal Procedure Code gave increased powers to the court which it did not possess before that section was enacted, observed, that "it was not so" and proceeded to state "The section gives no new powers, it only provides that those powers which the Court already inherently possess shall be preserved, and is inserted as. Their Lordships think lest it should be considered, that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act. Reiterating the same view the Privy Council in Lala Jairam Das and Others vs Emperor observed: that Section 561A of the Code confers no new powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. This Court in State of Uttar Pradesh vs Mohammad Naim cited with approval the two decisions of the Privy Council referred to above. Section 561A was added to the Code in 1923. It purports to save the inherent powers of the High Court to make such orders as may be necessary to give effect to any order passed under the Code, to prevent abuse of the process of the Court and otherwise to secure the ends of justice. The introduction of the section was because doubts were expressed about the existence of such inherent powers in the High Courts after the passing of the Criminal Procedure Code. By the introduction of the section it was made clear that, the inherent powers of the High Court, for the purposes mentioned in the section, shall not be deemed to be limited or affected by the provisions of the Criminal Procedure Code. Thus, inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code. The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Section 369 of the Criminal Procedure Code is understood as applying to judgments on appeal by the High Court, Section 561A cannot be invoked for enabling the Court to review its own order which 1123 is specifically prohibited by Section 369 by providing that, no court when it has signed its judgment, shall alter or review the same except to correct a clerical error. Section 424 read along with Sections 366 and 367 would show that the requirements of the two sections in a judgment by a criminal court of original jurisdiction, shall also apply, as far as applicable to the judgment of the appellate court other than the High Court. The proviso is significant. It states that the appellate court, when delivering the judgment the accused shall not be brought up or required to attend unless otherwise directed to hear the judgment delivered. The provisions of Section 366(2) require the court to secure the personal attendance of the accused at the time of delivery of the judgment, except where his personal attendance during the trial has been dispensed with. The effect of Section 424 is generally that, the appellate court should comply with the requirements prescribed under Sections 366 and 367. Section 430 deals with finality of orders on appeal, that is, the judgment passed by an appellate court shall be final unless otherwise provided for, but the finality of the appeal is subject to the provisions of section 417 of the Criminal Procedure Code which enable the State to prefer an appeal against an order of the trial court or by an appellate court. Similarly a judgment by an appellate court is final subject to the Chapter which provides for reference and revision. Section 424 deals with the general requirements of judgments and Section 430 with the finality of judgment on appeal unless otherwise provided for. These two sections, it may be noted, do not deal with restriction against altering or reviewing the judgment except for correcting a clerical error. A reading of Section 369 of Criminal Procedure Code would reveal that this Section is intended to apply to all courts, the provision being "no court when it has signed its judgment shall alter or review the same". 'no court ' would include 'all courts '. The operation of the section is saved if it is provided by the Code or by any other law for the time being in force. So far as the High Court is concerned, the Section provides that the prohibition will not apply if the Letters Patent or other instrument constituting such High Courts confers such a power. We see no justification for restricting the application of the Section to judgments delivered by the High Court in criminal trials alone. The reference to the High Court in the section would indicate that the High Court is also covered by the provisions of the section subject to the exception provided for. The criminal jurisdiction as conferred by the Letters Patent on the High Court covers not only the original criminal jurisdiction but also appellate powers. Though Section 369 appears in Chapter XXVI, we 1124 are not inclined to accept the contention put forward on behalf of the defence that it is applicable only to trial courts and in any event not to appellate judgments of the High Court. Section 362 of the new Act has done away with the special provisions regarding the High Court and has made the section applicable to all courts. On a careful reading of Sections 369 and 424 and 430, we are satisfied that Section 369 is general in its application. The word 'no court ' would include all courts and apply in respect of all judgments. Section 424 in confined, in its application, only to the mode of delivery of judgment, the language of the judgment, the contents of judgment etc. and section 430 of Criminal Procedure Code to the finality of judgments on appeal, except as provided for. Whether the judgment is by the trial court or the appellate court, Section 369 is universal in its application and when once a judgment is signed, it shall not be altered or reviewed except for correcting a clerical error. Mr. Patel, the learned counsel for the respondents, submitted that this Court has laid down that Section 369 is applicable only to judgments of the trial court and therefore Section 369 cannot be construed as being applicable to appellate court, especially to High Court. He relied on the decision in U.J.S. Chopra vs State of Bombay. The question that arose for decision in the case was whether a revision preferred by the State of Bombay to the High Court praying for enhancement of sentence, passed on the accused, is maintainable after the appeal preferred by the accused to the High Court of Bombay, was summarily dismissed. This court held that the summary dismissal of the appeal, preferred by the appellant, did not preclude him, from taking advantage of the provision of Section 439(6) of the Code of Criminal Procedure, and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced. Two separate judgments were delivered by the three Judge Bench. Justice Bhagwati along with Imam, J. spoke for the court while S.R. Das, J. delivered a separate judgment. Justice Das, while repelling the contention that the power under Section 439(6) is conditioned or controlled by the provisions relating to finality of judgment embodied under Section 369 and 430 at page 108, observed: "There is indication in the Code itself that the purpose of Section 369 is not to prescribe a general rule of finality of all judgments of all criminal courts but is only to prescribe the finality of the judgment so far as the trial court is concerned. That this Section does not, by itself, apply to the judgment of an appellate court is quite obvious, because if it did, there 1125 would have been no necessity for enacting Section 424 specifically making the rules contained in Chapter XXVI which includes Section 369 applicable to the judgment of any appellate Court other than High Court, nor for again prescribing by Section 430 a rule of finality for judgments and orders passed by an appellate Court". The learned Judge concluded that the finality of section 369 attaches to the judgments pronounced by all trial courts including the High Court in the exercise of its original criminal jurisdiction, it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by section 430 of the Code. Bhagwati J. who spoke for the Court has not held that the provisions of section 369 are applicable only to judgments of the trial courts. On the other hand, a reading of the judgment of Bhagwati J. would indicate that the learned Judge was inclined to hold that the finality provided for in section 369 of the Criminal Procedure Code is also applicable to the judgments rendered by the High Court in the exercise of its appellate or criminal jurisdiction. At p. 144 of the Reports the learned Judge observed that once a judgment of the lower court is replaced by the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance the sentence which is thus passed by it upon the accused. The principle as to the finality of judgments applied by the Court by virtue of the provisions of section 369 and section 430 of the Criminal Procedure Code should not have been confined merely to the question of con firming the conviction but also should have been extended to the con firming of the sentence insofar as the High Court did not see any reason to reduce the sentence already passed by the lower Court upon the accused. Again dealing with the principle of finality the learned Judge observed that the principle of finality of judgments should therefore be extended not only to the question of the confirming of the conviction but also to the question as to the adequacy of the sentence, whether the sentence which is passed upon the accused by the lower Court should be reduced, confirmed or enhanced. Once therefore the judgment of the High Court replaces that of the lower Court there is no question which can ever arise of the exercise by the High Court of its revisional powers under section 469 ( 1 ) of the Criminal Procedure Code. Again at p. 162 the learned Judge reiterated the principle and observed "As we have observed that principle comes into operation when once a judgment of the High Court has replaced that of the lower Court and in those cases the High Court would not be competent to review or revise its own judgment." In referring to the import of section 369 on the powers of the High Court under section 439(6), Bhagwati J. held that section 369 in terms provides, 1126 "save as otherwise provided in this Code" and section 439(6) would be an otherwise provision which is saved by this non obstante clause appearing in section 369. It is significant to note that both these amendments the one is section 369 and the other is section 439, were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendment would appear to be to effectuate the right given to the accused to show cause against his conviction as enacted in section 439(6) of the Criminal Procedure Code". As the majority judgment does not share the view expressed by Das J. quoted above reliance cannot be placed on the view of Das J. The view expressed by Privy Council in Jai Ram Das 's(1) case that alteration by the High Court of its judgment is prohibited by section 369 of the Code was not brought to the notice of Das J. Later decision Of this Court particularly the decision in Superintendent and Remembrance of Legal Affairs, W.B. vs Mohan Singh and Others (2) held that when once the judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained. In the Full Bench decision of the Allahabad High Court in Raj Narain and other vs The State (2), Moothem J. observed: "It has commonly been assumed, even it would appear by the Privy Council in Jairam Das 's case, that this section applies also to the judgment of the appellate Court but it is clear that this is not so: U.J.S. Chopra vs State of Bombay ; In a latter decision in Nirbhay Singh vs State of Madhya Pradesh, (4) this Court, dealing with section 369, after referring to Chopra 's case observed that section 369 occurs in Chapter XXVI and prima facie applies to judgments of the court of first instance. The Court did not proceed on the basis that it was settled law that section 369 is applicable only to judgments of trial courts. Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides. 1958 S.C.R.1226 relates to the power of the High Court to cancel bail. The High Court took the view that under section 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail distinguishing the decision in 1945 Law Reports and 72 Indian Appeals (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court 1127 to cancel bail under section 561A. In Sankata Singh vs State of U.P.,(1) this Court held that section 360 read with section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court. The accused applied before a succeeding Sessions Judge for re hearing of all appeal. The learned Judge was of the view that the appellate court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate court had no power to review or restore an appeal. This court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment. which does not comply with the requirements of section 369 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to. set it aside himself and rehear the appeal observing that "section 369 read with section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. Reliance was placed on a decision of this Court in Superintendent and Remembrance of Legal Affairs W.B. vs Mohan Singh and others(2) by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra 's case (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there are no provisions in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of section 561A of the Code cannot be revoked for exercise of a power which is specifically prohibited by the Code. In the result we accept the contention put forward by Mr. Mukerjee for the State and hold that High Court has no power to revise its own order. The appeal is allowed. P.H.P. Appeal allowed.

The respondents were convicted under Section 20 of the Forward Contracts. (Regulation) Act, 1952. The District Magistrate found the firms and persons in management of business guilty of the offences with which they were charged and inflicted a consolidated fine of Rs. 2000/ with the direction that they would suffer simple imprisonment for three months in default of payment of fine. Against their conviction and sentence the accused preferred an appeal to the Sessions Judge. The Sessions Judge while dismissing the appeals found that the law required imposition of a minimum sentence of fine of Rs. 1000/ for each offence and as the sentence passed by the Trial Court was not in accordance with the law, he referred the matter to the High Court for passing an appropriate, sentence. The accused also preferred revision petition against the order of the Sessions Judge. Both the proceedings were heard together The High Court dismissed the revision petition preferred by the accused and accepted the reference by the Sessions Judge and enhanced the sentence so far as the firms are concerned, to a sum of Rs. 3,900/ . As regards the Managers or the Managing partners the High Court sentenced them to six months rigorous imprisonment. The Managers or Managing Partners filed miscellaneous petitions before the High Court for review of its order. The High Court accepted the petition for review and recalled its previous judgment imposing sentence of six months rigorous imprisonment on the petitioners and instead imposed a fine of Rs. 3900/ . The High Court came to the conclusion that no comprehensive notice was given to the accused to show cause why sentence of film should not have been enhanced to true sentence of substantive imprisonment and that the notice was only to show cause why the fine should not be increased. The State of Orissa filed an appeal by certificate in this Court The appellants contended. (1) The High Court had no jurisdiction to review its own judgment. (2) The High Court erred in holding that proper notice was not issued. (3) The notice issued to the accused was clear and wide enough to include the imposition of substantive sentence of imprisonment. The respondent contended: 1. The High Court has ample jurisdiction under section 561(A) and other provisions of the Criminal Procedure Code to review its own judgment. Section 369 of the Criminal Procedure Code is not applicable to judgments on appeal passed by the High Court much less to the judgment of the High Court passed in exercise of its criminal jurisdiction, under section 439 1115 Allowing the appeal the Court, ^ HELD: (1) Section 369 as enacted in 1898 provided that no Court other than High Court, when it has signed its judgment shall alter or review the same except as provided in Section 395 and 484 or to correct a clerical error. The section was redrafted in 1921 which gave power to the High Court to review its judgment only if it is provided by the code or by any other law for the time being in force. Section 362 of the Criminal Procedure Code 1974 also provides: "that save as otherwise provided by the Code or by any other law no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error." [1119 A E] (2) The Letters Patent of the High Court at Bombay, Calcutta and Madras provide that the High Court shall have full power to review a case if such points or points of law are reserved under clause 25 or on it being certified by the Advocate General that there is an error and the points should be further considered. No other provisions relating to the power of review of the consideration of the High Court was brought to the notice of the Court.[1120 A C] (3) The provisions of Sec. 424 which make the procedure of the Court of original Jurisdiction applicable to the Appellate Court cannot confer the power of review. [1127 C] (i) The inherent power of the High Court conferred by Sec. 561(A) are restricted to making orders to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Section 561 (A) does not confer increased powers to the Court which it did not possess before that section was enacted. It only provides that those powers which the Court inherently possessed shall be preserved. [1121 ,H, 1122 A C] Emperor vs Khweja Nazir Ahmad, AIR 1945 Privy Council 18; Lala Jairam Das & Ors. vs Emperor, 1945 Law Reports 72 I.A. 120 State of U.P. vs Mohammad Naim, ; at 370 relied on. (2) Sec. 561(A) was added to the Code in 1923 because doubts were expressed about the existence of such inherent powers in the High Court after the passing of the criminal procedure code. The inherent powers cannot relate to any of the matters specifically dealt with by the Code. Inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code. The inherent power is only for giving effect to orders passed under the code, to prevent abuse of process of any court or otherwise to secure the ends of justice. [1122 D G] R. J. section Chopra vs State of Bombay, ; distinguished. Raj Narain & Ors. vs The State, AIR 1959 All. 315, U. J. section Chopra vs State of Bombay, ; ; Nirbhay Singh vs State of M.P., ; Sankatha Singh vs State of U.P.; , ; Superintendent and Remembrance of Legal Affairs W.B. vs Mohan Singh & Ors., referred to. 1116

ivil Appeal No. 2041 of 1968. (From the Judgment and Decree dated 2.2.1966 of the Allahabad High Court (Lucknow Bench) Lucknow in First Execu tion Appeal No 5/62). S.N. Prasad, for the appellant. G.C. Mathur and O.P. Rana for the respondent. The Judgment of the Court was delivered by BEG, C.J. This appeal by certificate raises the simple question whether certain trees, said to be part of a grove, are included in 34 grove land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) vests in the State of Uttar Pradesh free from all encumbrances. This very question was raised by the respondent decree holder in the execution proceed ings in this very case, between the same parties which came to this Court on an earlier occasion. We have perused the judgment of this Court reported in ; , in the case. We find that the position taken by the respond ent decree holder then also was that, after the coming into force of the Act, what could still be sold in execution of the decree was the right in trees of groves as these contin ued to vest in the intermediary. This Court rejected ' that submission and held that after vesting of all the rights mentioned in. section 6 of the Act in the State of Uttar Pradesh, new bhumidhari rights came into existence under section 18 of the Act. It also held ' that the only way in which a mortgagee could enforce his right against the mortgage or after the Act came into force is provided in section 6(h) of the Act, read with section 73 of the , so that nothing more than the compensation awarded to the, intermediary could be proceeded against by the mortgagee. Proceed against by the mortgagee. We are surprised that, even after that decision which, according to the aPPellant judgment debtor, constitutes a complete answer to any further execution proceedings in respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between, trees and a grove and grove land, should have been upheld by a Division Bench of the Allahabad 'High Court (Lucknow Bench).We find that it is impossible for us to accept this opinion in view of the definition of the intermediary 's grove under section 3(13) of the Act which says "intermediary grove means grove land held or occupied by an intermediary as such". This means that "grove land" and an "intermediary 's groves are equated and groves are on ly collections of trees in plots of land so as to preclude cultivation in them. The uncut trees are deemed to be parts of the "land". Section 18(1)(a) of the Act provides that an "intermediary 's grove" is bhumidhari property. Rights in it are part of bhumidhari rights. After these clear words of the enactment. we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove land. The proposition is well settled, under the general law, that trees, before they are cut, form parts of 'land '. And, an inseparable part is always included in the whole. In view of this very clear legal position, we allow this appeal and set aside the judgments and decrees of the High Court and the Execution Court with costs. S.R. Appeal al lowed.

In Rana Sheo Ambar Singh vs Allahabad Bank Ltd., Allaha bad (1962) 2 SCR p.441, this Court held that the respond ent could not enforce his rights under the mortgage by the sale of the new Bhumidari rights created in favour of the mortgagor by section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and that the respondent could only enforce his rights against the appellant in the manner provided under section 6(h) of the Act read with section 73 of the Transfer of Property Act, and follow the compensation awarded to the intermediary. Despite this decision having been brought to the notice in the execution proceedings initiated by the respondent attachment of the trees in groves belonging to the appellant was ordered by the executing Court taking the view that there is a distinction between the trees and a grove and grove land. The Division Bench of the Allahabad High Court (Lucknow Bench) upheld the views of the Executing Court and dismissed the appeal Allowing the appeal by certificate, the Court, HELD: (1) The view that there is a distinction between trees and a grove and grove land and, therefore execution against trees in groves could be proceeded against cannot be accepted in the light of the definition of the intermediary grove under section 3(13) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, viz., "intermediary 's grove" means groveland held or occupied by intermediary as such. [34 D E, H] (2) Groves are only collection of trees in plots of land so as to preclude cultivation in them. The uncut trees are deemed to be parts of the land. The proposition is well settled under the general law, that trees, before they are cut. form parts of 'land '. And are inseparable part is always included in the whole. [34E F] (3) Section 18(1)(a) of the Act provide that an "inter mediary grove" bhumidary property. Rights in it are parts of bhumidari rights.

ivil Appeal Nos. 1402 & 1401 of 1990. From the Judgment and Order dated 22.5. 1987 of Delhi High Court in C.W.P. No. 2687 of 1986. N.S. Hegde, Additional Solicitor General, K. Swamy and Ms. A. Subhashini for the Appellants. G. Ramaswamy, Rajiv Sawnney, A.K. Verma, Sukumaran, V.B. Saharya and S.D. Sharma for the Respondents. T.C. Bhatia (In person) for the Intervener. PUNCHHI, J. Special leave granted. These two appeals respectively are directed by the Union of India and the Delhi Development Authority (hereinafter referred to as the DDA) against the full bench decision and order of the Delhi High Court dated May 22, 1987 declaring and by necessary implication directing that the DDA carry out and implement its resolution number 26 dated February 1, 1983, which resolution was said to have been substituted by it by a later resolution number 3 dated August 1, 1986 reiterated by another resolution dated November 3, 1986. These resolutions related to some affairs of the Delhi Cloth Mills Limited (hereinafter referred to as the DCM), the writ petitioner before the High Court, and the official reaction thereon. Some of the essential facts as culled out from the judgment of the High Court, and others which have come by in the meantime, would be necessary to be noticed. The Mill has a complex over an area of about 63 acres at sites at Bara Hindu Rao and Kishan Ganj at Delhi. The Delhi Development Act, 1956 envisages preparation by the DDA of a Master Plan for Delhi, which it did, and was enforced and one of its attributes is to assign land use. Bara Hindu Rao is a non conforming area and the industry of the kind in which the Mill is engaged in has to be shifted out to a conforming area. 6 12 acres of land near about Narela was said to have been ear marked for conformed use of factories. The DCM in September 1982 approached the DDA and putforth its proposal for shifting the Mill and for re developing the Mill area for group housing and flatted factories. On February 1, 1983 the DDA by resolution number 26 agreed to the scheme as propounded by DCM as feasible for implementation in phases. But in passing it 954 recorded a fact that the shifting of the Mill would involve a lot of working population and consequently income and products manufactured by the DCM would carefully need to be looked into by the Delhi Administration and Ministry of Industries in terms of its affectation to the economy of Delhi. On the other hand in September 1983 the DDA turned down the request of the DCM for allotment of an alternate site measuring 150 to 200 acres of land in a conforming area for shifting having regard to the kind of industry the DCM was engaged in. The DCM then applied to the Secretary, Labour/Labour Commissioner, Delhi Administration for permis sion to close down the Mill under the provisions of Section 25(O) of the Industrial Disputes Act. The reasons advanced by the DCM inter alia were that the Mill could not be kept located in a non conforming area as otherwise penal conse quences would follow as also that it had run into tremendous losses, the industry being unprofitable. On April 15, 1985, the request of the DCM was turned down by the Secretary, Labour/Labour Commissioner. In this state of affairs when the DCM had been given no place to shift to and the closure of the Mill had been declined, the DDA reviewed the situa tion and passed a fresh resolution No. 3 dated August 1, 1986 reviewing its earlier resolution dated February 1, 1983 recalling the grant of approval with regard to the scheme propounded by the DCM. Further it felt justified in taking such step as the Master Plan was under process of review keeping the perspective of the year 200 1 AD in view. The DDA even reiterated its resolution of August 1, 1986, by another resolution dated November 3, 1986 during the penden cy of the writ petition in the High Court when asked to have a fresh look into the matter. These two later resolutions, as said before, were quashed by the High Court restoring the earlier resolutions dated February 1, 1983 taking a broader view that the mill could not be kept working in a non con forming area as otherwise it would attract penal action under the law after the lapse of three years from January 18, 1986, and that. the DDA could not justify its action as even the proposals to modify the Master Plan with the perspective of year 2001 AD in view did not contain any proposal for change of land use of the site under the DCM, and as of original, it was a site marked for group housing and flatted factories. The reasons advanced by the Secretary, Labour/Labour Commissioner declining request of the DCM for closure of the Mill under section 25(0) of the Industrial Disputes Act as recorded were as follows: "The closure of the unit is not in public interest as this 955 would render almost 6000 workers jobless and adversely affect thousands of their families members. Besides, trade and commercial activity associated with this Mill would be adversely affected on account of the closure. It is in public interest that the management makes all out efforts towards the efficient functioning of this Mill. Finally, the operations of this unit are not dangerous to the lives of the Industrial workers and the people living around the factory. The location of the Unit in a thickly populated locality therefore does not involve any community risk. " The DCM filed Civil Writ No. 1281 of 1985 in the High Court which was allowed by a Full Bench of the High Court on March 1, 1989 ordering closure of the Mill, though much after the decision instantly appealed against. The Lt. Governor, Delhi Administration sought special leave vide SLP (C) No. 3630 of 1989. Another sequential petition SLP (C) No. 3369 of 1989 was preferred 'by the DCM against the order of the Full Bench of the High Court passed two days later on March 3, 1989 extending time for grant of permission by the Lt. Governor for closure of the factory till March 30, 1989. When these matters were called in this Court along with the SLPs, now appeals, it transpired that the DCM and its employees, ranging about 6,000 in number, had fortunately reached an agreement in the matter of closure of the factory. The High Court also had come to the conclusion that indisputably the location of the factory in Bara Hindu Rao, within the munic ipal limits of New Delhi was not congenial from the point of view of sanitation and was otherwise hazardous. Keeping such finding and the settlement between the DCM and its employees in view, the Full Bench judgment of the High Court dated March, 1, 1989 was left uninterfered with dismissing the special leave petition No. 3630 of 1989 on March 27, 1989, with a consequential direction: "So far as the payment of statutory compensation which forms part of the agreement, we direct that DCM shall credit the amounts payable to the individual employees by opening an account with a nationalised bank as per the time schedule indicated in the agreement by making fixed deposits for an initial period of 91 days. Payment into the account and making over the fixed deposit receipt, so far as the dis bursement of the statutory compensation is concerned, shall be taken to have been satisfied when such fixed deposit receipt is made over to the respective employees." 956 Sequelly SLP No. 3369 of 1989 preferred by the DCM was also dismissed on the same date. What survived on March 27, 1989, were the instant two special leave petitions, now appeals, and during the course of their hearing Mr. Nariman appearing for DCM on his own indicated that DCM was prepared to locate a community centre and a hospital to serve the requirements of the employees as also the residents of the locality. He further.submitted that notwithstanding the pendency of those two petitions, the Delhi Administration, should proceed to process the application of DCM for requisite permission for locating the proposed flatted factories and residential accommodation for officers and workmen in accordance with the Master Plan, subject to the result of these petitions. In these circum stances, the Municipal Corporation of Delhi, which was not a party to these proceedings (though later represented by counsel), as well as the two petitioners, Union of India and the DDA were given directions to process the applications for permission and proceed with the same in accordance with law pending disposal of the special leave petitions. This order was later clarified on April 10, 1989 to say that processing of the applications by the three aforementioned functionaries did not include making of a final order and no final order disposing of the applications be made until the special leave petitions are finally disposed of. It was further directed that in the matter of processing, the Master Plan and the relevant law be kept in view. The scope of these matters is now considerably reduced and easily discernible. The factory has been ordered to be closed and the employer and the employees have entered a settlement. The supposed basis for reviewing or recalling resolution dated February 1, 1983 on the basis of its affec tation to the industry and economy of Delhi as also to the workmen has vanished. On this footing and on the events which have come by, the challenge to the judgment and order of the High Court loses vigour and this does not now at least remain a case calling for interference under Article 136 of the Constitution except what we intend adding thereto to further the cause of justice. Resolution No. 26 dated February 1, 1983 approving the scheme as given by the DCM provided that the scheme had taken all necessary safeguards and controls which would help triggering re development and rehabilitation in the congest ed areas of the central core of the capital. The Technical Committee of the DDA assisting in the matter was even of the opinion that when permitting flatted factories, it could 957 be ensured that a reasonable percentage in the scheme is reserved for rehabilitating small industrial units presently functioning in the State in non conforming areas and that the scheme could only be implemented if it had the approval of the Delhi Administration and the Government of India. To further that object, during the course of these proceedings upto date plans as prepared and submitted by the DCM to Municipal Corporation of Delhi, together with the sanction accorded thereon by the Standing Committee of the Municipal Corporation of Delhi vide resolution No. 1136 and 1137 dated November 24, 1989, were sent to the DDA for approval on December 6, 1989. These had to be examined by the DDA in accordance with the assurance given to this Court by Shri G. Ramaswamy, its learned counsel and keeping in view the Master Plan. These plans were examined vis a vis the plans earlier submitted by the DCM in 1982 83. We have been con veyed that the objections as raised by the Municipal Corpo ration of Delhi within their own domain have been adopted by the DDA as their own objections, which are extracted below: 1. FLATTED FACTORIES: The scheme has been formulated on a piece of land measuring 24.55 acres. This land is earmarked for flatted factories in Delhi Master Plan and partly for widening of road. The Master Plan provides on page 18 about the DCM site as follows: 'The Delhi Cloth Mills have to move out of this congested area to the extensive industrial districts accord ing to the time schedules given for non conforming uses. The present site should be developed for flatted factories in gradual stages to relocate the industries now located in Ahata Kidara and other areas. ' 2. Therefore, this site after development in stages for flatted factories is to be utilised only for providing accommodation to the existing units in the above referred areas. The number of flatted factory units will depend upon/be related to the units located/functioning in these areas. Therefore, in the proposed scheme of flatted factory, all these aspects have to be provided for and it should fulfil these requirements. The Scheme has to be modified accordingly as no such details provision are indicated in the Scheme. 958 3. Regarding the No Objection Certificate from the land use point of view, as required under bye law No. 6.2.2 which has come into force w.e.f. 2.6.83, DCM is required to obtain the NOC from the land use point. of view from the DDA before the plans can be approved by MCD. In the present case, no such NOC under bye law No. 6.2.2 has been applied for by the DCM. 4. The right of way of National Highway No. 10 as per Master Plan for Delhi is 200 ft. whereas in the Scheme, it is shown as 150 ft., the Scheme accordingly needs suitable modifica tion. In the proposed scheme an entry/exit is provided from the proposed National Highway No. 10 which would not be techni cally feasible because of the proposed road underbridge at this point. In the proposed scheme 2, basements have been provided equivalent to 40% of the ground coverage whereas the base ment should be equivalent to the ground coverage, provided in the scheme and should be used for essential services and for parking. This condition has also been imposed in the NOC issued by Commissioner (Slum) under the Slum Improvement and Clearance Act, 1956. GROUP HOUSING RESIDENTIAL COMPLEX AT KISHAN GANJ 1. The scheme on an area measuring 39.73 acres has been formulated by the DCM in Kishan Ganj area comprising of (i) free hold land of DCM, (ii) lease hold land with DCM where Lessor is DDA measuring 11.98 acres and (iii) the DDA land encroached by the DCM, measuring 5091 sq. mtrs. As per the terms of lease, the lessee cannot use, without permission, in writing, of the Lessor, land for any purpose other than that for which it has been given by the Lessor. The Scheme, therefore, needs modification to exclude the lease hold land which has been included in this Scheme. Land, measuring 5091 sq. mtrs. has been illegally en croachedby DCM. This land belongs to DDA which has 959 not been given on leasehold basis to the DCM. This land has been included in the re development Scheme. Since the owner ship of the land is with the DDA, the Scheme will have to be modified to exclude this land also. Therefore, lands leased out and unauthorisedly occupied should be deleted and the scheme should confine to the free hold land. The scheme needs modification. The scheme formulated is without any distinction of the freehold, leasehold, and the unauthorisedly occupied land. Therefore, the plan has to be modified to ensure that the scheme on the lease hold land is a separate entity because in the eventuality of permission being granted by the Lessor to allow use of the land for group housing purposes, it would be necessary as there may be occasion for determining the lease for violation of the lease terms and this will be possible only if the lease hold land has a separate identity on the ground. As per June, 1983, Municipal Building Bye laws, under the byelaws 6.2.2 a 'no objection certificate from land use point of view from DDA is required to develop this land for residential use. Therefore, the DCM had have to obtain 'No objection Certificate ' from land use point of view from DDA for the development of this land under the provisions of this bye law before their scheme could be considered and sanctioned by the Municipal Corporation of Delhi. In the Scheme formulated, it is observed that some of the areas for facilities such as nursery school, shopping etc. have been included for coverage and FAR calculations as part of the group housing area; while as per Master Plan stipula tions, the area for community facilities within group. housing scheme cannot be included for the purpose of calcu lations of coverages and EAR. These should be left as inde pendent plots for providing such facilities. The present Master Plan Zoning regulations prescribe a height of 80 ft. for residential group housing whereas the height provided is more than that. The present scheme has been formulated having some of the blocks of 12 floors (ground plus 11 storeyes). The 960 Master Plan Zoning regulations provide a maximum height of 80 ft. i.e. ground plus 7 storeyes. Therefore, the scheme needs notifications accordingly. In the proposed scheme 2 basements have been provided for parking, servicing and storage whereas the basement should be provided equivalent to the ground coverage for essential services and for parking which is also one of the conditions imposed by the Commissioner (Slum) while granting NOC under the Slum Improvement and Clearance Act, 1956. OF INDIA MIN. OF URBAN DEVELOPMENT COMMUNI CATION THIS REGARD. Director (DD), Min of U.D. vide his letter No. 16021/3/87 DD II/VA date 11.12.89 has stated that the land use and the proportion in which the land has to be developed for various uses, the provisions of the Master Plan of 1962 and the proposals made in PDP 2001 will have to be borne in mind. Further, it is mentioned that a view is to be taken for the use for which the Nazul Land given on lease is to be put. Thus, keeping in view the above communication from the Ministry, the Scheme will require modifications in the light of the proposals made in PDP 2001. " The DDA thus requires the aforesaid objections to be first met before it could give its final approval. It is worthy of record that under interim directions of this Court, afore referred to, its approval shall proceed after the disposal of these appeals. And we feel that time for that purpose has arrived. Having heard learned counsel for the parties and having taken note of the objections above referred to, we take the view that the appeals be dismissed conveying a direction that the DDA shall grant to the DCM conditional approval subject to removal of the above enumerated objections raised or such of them as are valid and tenable in law after DCM is heard by the Municipal Corporation of Delhi which the DDA has adopted and the matter be formalised forthwith by the DDA and other authorities connected therewith within eight weeks from today so that the settlement between the workers and the DCM and other matters connected do not stagnate and rather move further to the benefit of all concerned. It appears that to the 6,000 961 workmen the grant of such approval even though conditional, would be beneficial; so are the terms of the settlement. Saddling the order appealed against with the above direction we dismiss these appeals. No Costs. I.A. No. 1 of 1989 for intervention by a co sharer named Tara Chand Bhatia voicing grievance that the DCM has under valued its property at Bara Hindu Rao etc. and that it should be ordered to be revalued, is also dismissed as it has no connection with the main issue. Y. Lal Appeals dismissed.

The respondent Delhi Cloth Mills has a complex over an area of 63 acres at Bara Hindu Rao and Kishan Gnaj, Delhi, which is a nonconforming area and the industry of the kind in which the mill is engaged in was required to be shifted consequent upon the enforcement of Master Plan prepared by Delhi Development Authority under the Delhi Development Act, 1966, which plan amongst other things was to assign land use. The Delhi Cloth Mills in September 1982, approached the DDA and put forth a proposal for shifting the mill and for redeveloping the Mill area for group housing and flatted factories. The DDA by Resolution No. 26 agreed to the scheme to be implemented in phases but it took care to examine the matter further from Delhi 's economics point of view. In September 1983, the DDA turned down the request of the respondent for allotment of an alternate site in a conform ing area for shifting the mill. Thereupon the Mill applied to the Secretary, Labour/Labour Commissioner, Delhi Adminis tration for permission to close down the Mill under Sec. 25(D) of the Industrial Disputes Act, on the ground that the Mill could not be kept located in a non coforming area as otherwise penal consequences would follow. On April 15, 1985, the request of the Mill was turned down by the Secre tary, Labour/Labour Commissioner. Thereupon the Delhi Mill filed a writ petition before the High Court for direction that the DDA be directed to implement its resolution No. 26 dated Feb. 1, 1983. It may be mentioned here that during the pendency of the writ petition before the High Court, DDA had reviewed the situation and passed a fresh resolution No. 3 dated August 1, 1986 reviewing the earlier resolution dated Feb. 1, 1983 recalling the grant of approval with regard to the scheme propounded by the DCM. Thereafter DDA reiterated its Resolution of August 1, 1986 by another resolution dated November 3, 1986. 952 The High Court quashed the two later resolutions and re stored the resolution dated February 1, 1983. It took the view that the Mill could not be kept working in a non con forming area as otherwise it would attract penal action under the law after the lapse of three years from Jan. 18, 1986. Both Union of India and DDA have filed appeals in this Court by special leave against the High Court 's order. In the meantime DCM filed a writ petition in the High Court which was allowed by a Full Bench of the High Court on March 1, 1989 ordering closure of the Mill. Delhi Adminis tration filed special leave petition in this Court against the said order and the Mill filed another special leave petition against the order of the High Court dated 3.3.1989 extending time for grant of permission by the Lt. Governor for Closure of the factory till March 30, 1989. When these matters reached hearing in this Court, DCM and its employees had reached an agreement in the matter of closure of the factory. The Special Leave Petitions were therefore dis missed by this Court; and on the file of this Court remained these two appeals. Dismissing the appeals with a direction, this Court, HELD: The factory has been ordered to be closed and the employer and the employees have entered a settlement. The supposed basis for reviewing or recalling resolution dated February 1, 1983 on the basis of its affectation to the industry and economy of Delhi as also to the workmen has vanished. On this footing and on the events which have come by, the challenge to the judgment and order of the High Court loses rigour. [956F G] Resolution No. 26 dated February 1, 1983, approving the scheme is given by the DCM provided that the scheme had taken all necessary safeguards and controls which would help triggering re development and rehabilitation in the congest ed areas of the central core of the capital.[956G] Appeals dismissed conveying a direction that the DDA shall grant the DCM conditional approval subject to removal of the enumerated objections raised or such of them as are valid and tenable in law after DCM is heard by the Municipal Corporation of Delhi. The matter be formalised forthwith by the DDA and other authorities connected therewith within eight weeks so that the settlement between the workers and the DCM and other matters connected do not stagnate and move to the benefit of all concerned. [960G H] 953

Appeals Nos. 51 and 52 of 1962. Appeals from the judgment and order dated June 12, 1959 of the Kerala High Court in A.S. Nos. 538 and 539 of 1954. V. A. Seyid Muhammad, for the appellants ,. section T. Desai and A. G. Pudissery, for the respondent No. 1 April 15, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C. J. These two appeals arise from two suits Nos. 5 of 1947 and 32 of 1951; and the main point which they raise for our decision is whether the two document& executed by the appellants and two of the respondents are unenforceable as being opposed to public policy under sec tion 23 of the Indian Contract Act (hereinafter called the Act). The trial Court has answered this question in the affirmative. while the High Court of Kerala has taken a contrary view. Poulo Varghese and Poulo Thommi who are the sons of Ouseph Poulo were carrying on trade in hill produce at Always and in the course of their business, they had borrowed from the branch of the Catholic Union Bank Ltd. at Always large amounts. In that connection, they had pledged goods with the Bank as security for the loan and the same had been deposited in a godown the key of which remained with the Bank. It appears that on the 10th February, 1947, 747 the Officers of the Head Office of the Bank inspected the godown and it was discovered that there was considerable shortage of the goods pledged. Thereupon, the Secretary of the Bank lodged a complaint with the Police that Ouseph Poulo and his two sons who had dealings with the Bank as well as Poulo Joseph, another son of Ouseph Poulo, had col luded with the local Agent of the Bank and had fraudulently( removed a substantial part of the pledged articles form the godown. The complaint also alleged alternatively that if the goods had not been fraudulently removed, then the security offered by Poulo Varghese and Poulo Thommi was grossly inadequate to cover the large amounts advanced to them, and that was the result of cheating. The Police registered this case and investigations began. At that time the parties settled their differences and the two documents in question were ,executed. The criminal complaint was filed on the 13th February.and the First Information Report was made on the 16th February, 1947. On the 22nd February, a hypothecation bond (Ext. 26) was executed by Ouseph Poulo, his wife, his three sons and the wife of another son in favour of the Bank for Rs. 30,000/ . This bound covered immovable properties belonging to the executants. On the 27th February, 1947, another document was executed by the same parties in favour of the Bank for Rs. 35,000/ ; this document was called Kollappirivu Karar (Ext. On the came day a receipt was executed by Poulo Varghese and Poulo Thommi which showed that the goods in the godown were valued at Rs. 10,000/ and were surrendered to the Bank in partial satisfaction of the debts due from them to the Bank. This was followed by a hire purchase agreement by which the car owned by Poulo Thommi was transferred to the Bank and the same was conveyed back to him on a hire purchase agreement , the value of this car was taken to be Rs. 5,0001 . The total amount due from Poulo Varghese and Poulo Thommi to the Bank was Rs. 80,024 5 9. As a result of the transactions in which the parties entered, Rs. 10,000/ were made good by surrendering to the Bank the goods in the godown; Rs. 5,0001 by transferring the car; Rs. 30,000/ and Rs. 35,000/ by the hypothecation deed and the Karar respectively; that left a balance of Rs. 24 5 9 which was paid in cash. After this transaction had thus been concluded, on the 28th February the Secretary of the Bank made a statement before the police that the Bank 's claim had been settled and that he and the Managing Director of the Bank was satisfied that no goods had been removed from the godown as alleged in the complaint and that in collusion with the Agent of the Bank, the debtors Poulo Varghese and Poulo Thommi had 748 cheated the Bank by over valuing the goods pledged, but that no further action was necessary to be taken in that behalf. In consequence, the criminal proceedings were dropped. That, in substance, is the nature of the transactions, the character of which falls to be determined in the present appeals. On the 15th December, 1947, Ouseph Poulo, the father, his son Joseph, Poulo 's wife Aelia and Joseph 's wife Thressia filed a suit in forma paliperis seeking cancellation of the two documents in question on the ground that they had been executed to stifle criminal prosecution and that they were also vitiated by undue influence, coercion and threat. The first defendant to this suit was the Bank and defendants 2 and 3 were the two debtors Poulo Varghese and Poulo Thommi, the sons of Ouseph Poulo. This was suit No. 5/1947. While this suit was pending, the Bank instituted suit No. 32 of 1951 on the 26th February, 1951 and claimed to recover the amount due on the Karar from all its executants. The persons who had filed suit No. 5/1947 were defendants 1, 2, 5 & 6 in this suit and defendants 3 & 4 were the debtors Poulo Varghere and Poulo Thommi. These two sets of defen dants filed two separate written statements '. but the common plea raised by them was that the document on which the Bank 's suit was based was unenforceable under section 23 of the Act. The trial Court substantially upheld this defence with the result that suit No. 5 / 1947 was decreed and suit No. 32/1951 was dismissed. The Bank took this matter before the High Court by preferring two appeals Nos. 538 & 539 of 1954. The High Court has reversed the conclusion of the trial Court in regard to the character of the impugned transaction and in consequence, suit No. 5/1947 has been dismissed and suit No. 32/1951 has been decreed. That is how the plain tiffs in suit No. 5 / 1947 have come to this Court with a certificate issued by the High Court. During the course of this judgment. we will refer to the Bank as the Bank. the persons who brought suit No. 5/1947 as the plaintiffs and the two debtors as defendants 2 & 3. Before dealing with the merits of the controversy between the parties, it is necessary to state briefly the true legal position in regard to the agreements which are held to be unenforceable on the ground that the consideration for which they are made is opposed to public policy. It is well settled that agreements which are made for stifling prosecution are opposed to public policy and as such, they cannot be enforced. The basis for this position is that the consideration which sup ports such agreements is itself opposed to public policy. In India. this doctrine is not applicable to compoundable offences, nor to offences which are compoundable with the leave of the 749 court where the agreement in respect of such offences is entered into by the parties with the leave of the Court. With regard to non compoundable offences, however, the position is clear that no court of law can allow a private party to take the administration of law in its own hands and settle the question as to whether a particular offence has been committed or not, for itself. It is obvious that if such a course is allowed to be adopted and agreements made between the parties based ' solely on the consideration of stifling criminal prosecutions are sustained, the basic purpose of criminal law would be defeated; such agreements may enable the guilty persons to escape punishment and in some others they may conceivably impose an unconscionable burden on an innocent party under the coercive process of a threat of the criminal prosecution. In substance, where an agreement of this kind is made, it really means that the complainant chooses to decide the fate of the complaint which he has filed in a criminal court and that is clearly opposed to public policy. In dealing with such agreements, it is, however, necessary to bear in mind the distinction between the motive which may operate in the mind of the complainant and the accused and which may indirectly be responsible for the agreement and the consideration for such an agreement. It is only where the agreement is supported by the prohibited consideration that it falls within the mischief of the principle that agreements which intend to stifle criminal prosecutions are invalid. The sequence of events, no doubt, has relevance in dealing with this question; but from mere sequence it would not be safe to infer the existence of the prohibited consideration. If in order to put an end to criminal proceedings, an agreement is made in the execution of which persons other than those who are charged in a criminal court join, that may afford a piece of evidence that the agreement is supported by the consideration that the criminal proceedings should be terminated. If the nature of the liability imposed upon a debtor by a previous dealing is substantially altered with a view to terminate the criminal proceedings, that itself may be another factor which the Court may take into account in deciding whether the agree ment is supported by the prohibited consideration. But in weighing the different relevant considerations in such a case, courts must inevitably enquire: did one party to the transaction make his promise in exchange or part exchange of promise of the other "not to prosecute or continue prosecuting"? As Lord Atkin observed in Bhowanipur Banking Corporation, Ltd. vs Durgesh Nandini Desi(1), "In all criminal cases reparation where possible is the duty of the offender, and is to be encouraged. It would be a public mischief if on reparation (1) (1942)I.L.R. I Cal. 1. 750 being made or promised by the offender or his friends or relatives mercy shown by the injured party should be used as a pretext for avoiding the reparation promised". That, however, is not to say that if reparation is made as a consideration for a promise to give up criminal proceedings, it would not amount to an abuse of the right of private prosecution and would not attract the provisions of section 23 of the Act. The main point to remember is that the party challenging the validity of the impugned transaction must show that it was based upon an agreement to stifle prosecution. If it is shown that there was an agreement between the parties that a certain consideration should proceed from the accused person to the complainant in return for the promise of the complainant to discontinue the criminal proceedings, that clearly is a transaction which is opposed to public policy (vide V. Narasimha Raju vs V. Gurumurthy Raju(1), Maharaja Srish Chandra Nandy vs Supravat Chandra(2), Sudhindra Kumar Ray Chaudhuri vs Ganesh Chandra Ganguli(3); and Kamini Kumar Basu, vs Birendra Nath Basu(4). What then are the facts in this case on which the plaintiffs seek to challenge the correctness of the conclusion of the High Court that the impugned transactions are not invalid? Dr. Seyid Muhammed for the plaintiffs has urged that in dealing with the present dispute between the parties, it is essential to remember that the complaint filed by the Bank against defendants 2 & 3 is found to be not a bonafide complaint and that, according to him, shows the true complexion of the impugned transactions. It is true that the trial Court has found that the complaint made by the Bank was not bonafide and the High Court has not in terms reversed that finding because the High Court disbelieved the direct evidence led by the plaintiffs and held that the agreement alleged by them was not proved. Dr. Seyid Muhammed, therefore, contends that there is a finding recorded by the trial Court which has not been reversed in appeal, and so, we should deal with the main point in the light of this finding. If we had been satisfied that the complaint filed by the Bank was deliberately and dishonestly filed, that no doubt would have assisted the plaintiffs to a very large extent; but after carefully considering the material evidence on this point, we are satisfied that the trial Court was in error in coming to the conclusion that the Bank had filed the complaint malafide. The complaint in terms made three material allegations. It alleged that though the goods pledged by defendants 2 and 3 were of a very low value, they were (1) ; (3) 1939 I.L.R. I Cal. (2) A.I.R. 1940 Cal. (4) A.I.R. 1930 P.C. 100. 751 entered in the godown and in the relevant books as being worth a much larger amount. It also alleged that the goods, though of a cheap quality, were described as a very superior quality; and it also said that substantial part of the goods pledged had been removed from the godowns for the purpose of causing loss to the Bank and for making unlawful profit. This complaint was filed against defendants 2 and 3 and plaintiffs 1 and 2, and another son Ouseph Poulo who is not a party to the present litigation. In regard to this last allegation of theft, the complaint also averred that the key of the godown used to be with the agent of the Bank at Alwaye and the said agent had absconded. The complaint mentioned that the lorry in which the goods were removed bore the registration No. 2923 and it belonged to the Qunani Motor Service. When the Secretary of the Bank gave evidence he stated that on an enquiry being made on the spot, it was learnt that the goods had been removed in the particular lorry; but, later, no evidence was forthcoming to support that report. He, however, adhered to the case of the Bank that the goods which were found in the godown were hopelessly inadequate to serve as a security for the advance made to defendants 2 and 3. The argument is that the allegation as to theft was dishonesty made by the Bank in its complaint in order to apply coercive pressure against defendants 2 and 3 and the members of their family. Prima facie, this argument does appear to be attractive, and if it had been sustained, it might have helped the plaintiffs a good deal. There is, however, clear evidence on the record which negatives this contention. As we have already seen, a receipt was passed in favour of the Bank surrendering the goods which were found in the godown to the Bank and these goods have been priced at Rs. 10,000/ . It is common ground that the goods which were pledged with the Bank were intended to serve as a security for as much as Rs. 80,000 and odd; and so, there can be no doubt whatever that the goods found did not satisfy that requirement. The number of bags which were mentioned in the receipt its 534; that again does not represent the total bags of goods pledged with the Bank. So, it is absolutely clear that the Bank realised on inspection of the godown that the security offered was wholly in adequate and it may well be that on the spot some people reported that the pledged goods had been removed. That is why the Bank stated all the material facts and alleged that either the substantial part of the goods which had been pledged had been removed, or the goods which had been pledged were not at all enough to cover the amount advanced. In any case, the agent of the Bank may have colluded with the debtors. Now, in the view of the receipt passed by the debtors and the members of their family in favour of the Bank in which the value 752 of the goods found in the godown has been determined at Rs. 10,000/ , it would be unreasonable to suggest that the complaint made by the Bank was not bonafide. Besides, in dealing with this dispute, it is essential to remember that defendants 2 and 3 have not entered the wit ness box at all. They have left it to their father, mother, brothers and sister in law to fight this litigation. At every stage of the proceedings in both the suits, we come across points of dispute on which defendants 2 and 3 alone could have given evidence. Did they pledge goods worth the amount advanced to them? If yes, did the Agent remove them, or were the goods which were originally pledged not of enough value and by collusion with the Agent, representation was made and accepted that they were valuable? On all these matters, it was necessary that defendants 2 and 3 should have taken the oath to support the case made by the plaintiffs when they challenged the validity of the transaction in question. The High Court has seriously commented on the fact that defendants 2 and 3 have deliberately avoided to face the witness box. In our opinion, in the circumstances of this case, this comment is fully justified. There is another piece of evidence which is equally material and which is in favour of the Bank and that evidence relater, to the subsequent conduct of defendants 2 and 3. We have already noticed that a motor car belonging to one of the debtors was sold to the Bank for Rs. 5,0001 and taken back on hire purchase agreement. Indeed, this hire purchase agreement is a part of the transaction which settled the dispute between the parties. It appears that the debtors failed to pay the instalments under the hire purchase agreement and that led to a suit by the Bank. In this suit, the debtors filed an elaborate written statement containing 21 paragraphs; but we do not see, any allegation that the hire purchase agreement was a part of a transaction which was invalid and as such, the claim made by the Bank was not sustainable. In fact, this suit was decreed in favour of the Bank. The conduct of defendants 2 and 3 in not raising a plea against the validity of the hire purchase agreement is not without significance. Similarly, it appears that after the impugned transaction took place between the parties, defendants 2 and 3 applied to the Bank for further advance on the 11th April, 1947 and Mr. Ramakrishna Nair who is the principal witness for the plaintiffs in the present litigation and who was the Legal Adviser of the Bank, Supported the debtor 's request for advance. This request was, however, turned down and it is obvious that the failure of the Bank to accommodate the debtors ultimately led to the present plea that the transactions in question are 753 invalid. Therefore, we are satisfied that the subsequent conduct of defendants 2 and 3 clearly shows that they are not prepared to take the risk of facing cross examination and that is the reason that they have left it to their relatives to fight the present litigation. It is in the light of this background that we have to consi der the oral evidence in the case. The main witnesses on whose testimony Dr. Seyid Muhammed has relied are Mr. Nair P.W. I and Mr. Pillai P.W. 3. Mr. Nair is a practising lawyer and was at the relevant time the Municipal Chairman of Alwaye, whereas Mr. Pillai was a Municipal Councillor at that time. According to Mr. Nair, he took part in the execution of the relevant documents and advised the Bank. He stated that the documents were so executed for settling the criminal case. He also added that he told defendants 2 and 3 that if the mortgage deed and the agreement were got executed, the criminal case could be dropped and his explanation was that he made that statement because the Managing Director and the Bank 's Secretary Joseph had told him to that effect. It appears that for assisting the Bank in filing the criminal complaint, this lawyer had claimed Rs. 5001 , but the Bank, paid him only Rs. 200/ . That was one reason why he was dissatisfied. It also appears that he recommended to the Bank to give a loan to some persons including defendants 2 and 3 and his recommendation letters were ignored by the Bank. That war, another reason why he was not feeling happy with the Bank. The High Court has taken the view that the statements made by this witness cannot be regarded as reliable or trustworthy; and we are not prepared to hold that the view taken by the High Court is so erroneous that we should reverse it. In any case, reading the evidence of this witness as a whole, we would be reluctant to come to the conclusion that there was an agreement between the Bank and. defendants 2 and 3 at the relevant time which would attract the provisions of section 23 of the Act. Our reluctance is based on the somewhat unsatisfactory character of the evidence given by this witness as well as on the fact that defendants 2 and 3 who could have given evidence on this point have not stepped. into the witness box. The onus to prove the illegal character of the transactions was obviously on the plaintiffs and their failure to examine defendants 2 and 3 must largely contributed to the final decision on the issue. Mr. Pillai who is the other witness on whose evidence the, plaintiffs rely has been characterised by the High Court as untrustworthy; but the infirmity in the evidence of this witness, is that his evidence does not clearly or expressly lead to the conclusion that there was an agreement between the parties 754 that the document should be executed by the debtors in con sideration for the Bank withdrawing the criminal proceedings. The answers which he gave are somewhat vague and indefinite, and it would be unsafe to make the said answers the basis of a definite finding against the Bank. The last witness on whose evidence Dr. Seyid Muhammed has relied is plaintiff No. 1, the father, P.W. 7. His evidence is obviously interested and the fact that he has taken upon himself to speak to a transaction when defendants 2 and 3 who were directly concerned in the transaction did not come to give evidence, considerably detracts from the value of his statements. Therefore, having carefully considered the evidence in the light of criticism made by the High Court, we are not prepared to accept Dr. Seyid Muhammad 's argument that he has made out a case for reversing the conclusion of the High Court. In this connection, we ought to mention another point which is not irrelevant. The evidence given by the Secretary of the Bank, Joseph, shows that soon after the godown was inspected and before the complaint was filed, defendants 2 and 3 offered to the Bank to make up for the deficiency in the value of the pledged goods. They appealed to the Bank that the discovery made by the bank on inspection of the godown should not be disclosed to anybody and that they would immediately furnish sufficient additional security. In order to carry out this promise, they in fact delivered to the Bank certain documents of title in respect of the property which was ultimately mortgaged to the Bank; but all the documents of title were not handed over and that is where the matter stood when the complaint war, filed. Later, the two impugned documents were executed and the complaint was withdrawn. The point on which Mr. Desai for the Bank has relied is that the evidence of the Secretary shows that an agreement to furnish additional security had been reached between defendants 2 and 3 on the one hand and the Bank on the other even before the complaint was filed, and so, it would be unreasonable to suggest merely from the sequence of subsequent events that the impugned documents were executed with the object, and for the consideration, of stifling the criminal prosecution. Mr. Desai argues, and we think rightly, that where the validity of an agreement is impeached on the ground that it is opposed to public policy under section 23 of the Act, the party setting up the plea must be called upon to prove that plea by clear and satisfactory evidence. Reliance on a mere sequence of events may tend to obliterate the real difference between the motive for the agreement and the consideration for it. Did the parties offer to give security and execute the documents in consideration for the withdrawal of the criminal complaint by the Bank? that is the question which has to be decided in the present appeals, 755 and in proving their case, the plaintiffs are expected to lead satisfactory evidence; and in our opinion, the High Court is,, on the whole, right when it came to the conclusion, that the evidence led by the plaintiffs is, far from satisfactory. Therefore, we are satisfied that the view taken by the High Court is right and cannot be reversed. The result is, the appeals fail and are dismissed with costs( one set of hearing fees. The appellants have been allowed to file their appeals in forma pauperis, and so, we direct that they should pay court fees which they would have had to pay if they had not been allowed to appeal as paupers. Appeals dismissed.

Two of the defendants in the two suits out of which the present appeals arose borrowed a sum of Rs. 80,024 4 9 from the respondent Bank in course of their business by pledging their goods. The Bank discovered that there was shortage in the goods deposited and through its Secretary lodged a com plaint with the police that the said defendants, their father and brother had in collusion with the local agent of the Bank fraudulently removed part of the goods or, in the alternative, had made a grossly inadequate deposit to cheat the Bank. The Police registered the case and started investigation. The parties, thereafter settled their differences by a transaction which consisted, among others, of a hypothecation bond for Rs. 30,000/covering immovable property and a Karar for Rs. 35,000/ , which were executed in favour of the Bank by the parent of the said defendants, by the said defendants themselves and their brother and his wife. On the Secretary of the Bank stating to the Police that the Bank 's claim had been settled and any further action would be unnecessary the criminal proceeding was dropped. Thereafter the said relatives of ;the two defendants who had executed the hypothecation bond and the Karar brought a suit for the cancellation of the said documents on the ground that they had been executed to stifle the criminal prosecution and were as such unenforceable under section 23 of the Indian Contract Act. The Bank sued for recovery of the amount due on the Karar which was resisted on the same ground that the document was unenforceable under section 23 of the Contract Act. The said defendant debtors did not examine themselves. They did not raise the plea of unenforceability in respect of a hire purchase agreement which formed a part of the transaction in question and on which the Bank brought a suit against them and got a decree. After the said settlement these defendants applied for further loan from the Bank. There was evidence to show that an agreement to furnish additional security had been reached between the said defendants and the Bank even before the complaint was filed. The trial Court held that both ;the documents fell within the mischief of section 23 of the Contract Act and decreed the first suit and dismissed the second. The High Court on appeal took the contrary view and reversed the decision of the trial Court accordingly. The plaintiffs in the first suit appealed to this Court. Held: It was well settled that agreements made with the sole purpose of stifling prosecution were opposed to public policy since the consideration which supported such agreements was itself against public policy and could not, therefore, be 746 enforced. In India however this doctrine was not applicable either to compoundable offences or to offences which could be compounded with the leave of the Court. The onus was strictly on the party that impugned the trans action to prove that it was based on an agreement to stifle the prosecution. It must be able to show that on a certain consideration proceeding from it the complainant in return promised to discontinue the criminal proceeding and then alone the transaction would be one against public policy. V. Narasimha Raju vs V. Gurumurthy Raju, [1963] 3 S.C.R. 687, Maharaja Srish Chandra Nandy vs Sapravat Chandra A.I.R. , Sudhindra Kumar Ray Chaudhuri vs Ganesh Chandra Ganguli, 1939 I.L. R. I Cal. 241 and Kamini Kumar Basu vs Birendra Nath Basu, A.I.R. 1930 P.C. 100, referred to. Bhowanipur Banking Corporation Ltd. vs Duresh Nandini. Dasi, Cal. 1, considered. But in judging a particular agreement distinction must be made between the motive for the agreement and the considera tion for it and subsequent events should not be allowed to confuse the issue. It was clear in the present case that the plaintiffs had failed to discharge the onus that lay on them and the decision of the High Court was, therefore, correct.

ns Nos. 154 and 203 of 1966. Petition under article 32 of the Constitution of India for the enforcement of fundamentals rights. section K. Mehta, and K. L. Mehta, for the petitioners (in both the petitions). N. section Bindra, A. Sreedharan Nambiar , R. H. Dhebar for R. N. Sachthey, for respondent No. 1 (in W. P. 154 of 1966). 1. M. Lall and E., C. Agrawala, for respondent No. 2 (in W.P.No. 154 of 1966). R. H. Dhebar for R. N. Sachthey, for respondents Nos. I and_ (in W.P. No. 203 of 1966). H. R Gokhale and E. C. Agarwala, for respondent No. 6 (in W.P. No. 203 of 1966). Respondent No. 10 appeared in person (in W.P. No. 203 of 1966). Ramaswami, J. In this case the petitioner, Roshan La1 Tandon has obtained a rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under article 32 of the Constitution of India should not be issued commanding the respondents not to carry out the directives contained in the notification of the Railway Board No. E(NG)65 PMI 26 dated the 27 the October, 1965, Annexure 'D ' to the Writ Petition, in so far as it grants protection to the existing Apprentice Train Examiners and lays down the procedure to fill upgraded vacancies. Cause has been shown by, the respondents to whom notice of the rule was ordered to be given. There were originally two scales for Train Examiners Rs. 100 185 ( 'D ' Grade) and Rs. 150 225 ( 'C ' Grade). These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of 'D ' Grade was increased to Rs. 180 240 and that of 'C ' Grade to Rs. 205 280. On February 18, 1961 the Railway Board issued a letter No. PC 60/PS5/ TP 8, Annexure 'A ' to the Writ Petition to the General Managers 187 of all Indian Railways conveying its decision that vacancies in the Entry Grade of Train Examiners (in the scale Rs. 180 240) with effect from February 18, 1961 should be filled as follows: (i) 50% of the vacancies should be filled from Apprentice Train Examiners who successfully have completed the prescribed (4 years) apprenticeship, the remaining 50% of the vacancies being filled by promotion of skilled artisans. (ii) 20 /1/O of the annual requirements of Apprentice Train Examiners should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which the apprenticeship is likely to commence. " Promotion to Grade 'C ' of Train Examiners used to take place on the basis of seniority cum suitability without any distinction whether the employee entered Grade 'D ' of the Train Examiners directly or was selected out of the category of skilled artisans. This rule was laid down by the Railway Board in its letter No. E(S) 1 57 TRS/41, dated January 25, 1958 which states: "Ref : Para 2 of Board 's letter No. E(R) 49 JAC / 13 dated 23 2 50 laying down that 20% of the posts in the TXR grade Rs. 150 225 should be reserved and the TXR in the grade of Rs. 80 160 (since revised Rs. 100 185) promoted from skilled and semi skilled ranks. The Board have reviewed the position and have decided that promotion to the TXR grade of Rs. 150 225 should hereafter be made solely on the basis of seniority cum suitability and the reservation of only 20% as mentioned above will no longer be operative." (Annexure 'B ' to the Writ Petition). On the basis of this rule the Divisional Personnel Officer, New Delhi, prepared a seniority list for the Train Examiners of Grade 'D ' of Delhi Division as on December 31, 1964 (Annexure 'C ' to the Writ Petition). 'On October 27, 1965 the Railway Board issued the impugned notification (Annexure 'D ' to the Writ Petition). The notification states in the first place that on and from April 1, 1966 vacancies in the Entry Grade of Train Examiners scale Rs. 120 240 should not be filled from Apprentice Train Examiners upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff With regard to the next higher grade i.e., Grade 'C ', it was provided that 80% vacancies should be filled by Apprentice Train Examiners who had successfully completed the prescribed training of 5 years (three years in case of Diploma Holders and three years in case of Artisan recruited as Apprentice Train Examiner). Twenty per cent of the vacancies were to be filled by the Train Examiners from Grade 'D '. It was 188 further provided that the Train Examiners Grade 'D ' who began as Apprentice Train Examiners and who were to be absorbed in the 'C ' Grade against 80% vacancies reserved for them should not be required to undergo selection before being absorbed in that grade. As regards 20% vacancies reserved for the other class of Train Examiners the promotion was to be on selection basis. The materials portion of the notification of the Railway Board dated October 27, 1965 is reproduced below: "RECRUITMENT: (i) Vacancies in the entry grade of Train Examiners in the authorised scale Rs. 180 240 should not be filled from apprentice TX Rs. upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff. (ii) (a) Vacancies in the next higher grade Rs. 205 280 (AS) should be filled from amongst X X the TXRs in grade Rs. 180 240 (AS) to the extent of 2O%. (b) The remaining 80% vacancies should be filled by Apprentice TX Rs. who have successfuly completed prescribed apprenticepship mentioned in para 2 below. (c) 25% of the annual requirements of apprentice TXRS. should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which apprenticeship is likely to commence. The instructions contained in Board 's letter No. 2(NG) 61MI/101 dated 6 6 62 should be kept in view. Training 2. The Appentice TXRs recruited on and from 1/4/66 shall be given a training for a period of five years (three years in the case of diploma holders). From the same date artisans in lower grades (recruited as apprentice TXRS.) shall be given 'in service ' training for period of three years. Instructions regarding a revised syllabus for the training of the Apprentice TXRS. will follow: DISTRIBUTION OF POSTS IN DIFFERENT GRADE Fifty per cent of existing posts of TXRs in grade Rs. 180 240 which were required to be earmarked for(Apprentice TXRS. in terms of Board 's letter No. PC 60/ PS 6/TP 8 dated 18 2 1961 should be upgraded to scaleRs. 205 280. 189 REVISED DESIGNATIONS AND CLASSIFICATION OF POSTS OF TXRS. Designation Scale of Pay Classification T. X. Its. Grade D ' 180 240Non selection T. X. Rs. Grade 'C ' 205 280Selection for promotees from grade ID ' T. X. Rs. Grade 'B ' 250 380Selection T. X. Its. Grade 'A ' 335 425Non selection Head T. X. Rs. 370 475 Selection Chief T. X. Rs. 450 575 Selection Carriage Foreman Protection to the existing apprentice TXRS. procedure fill upgraded vacancies. It has also been decided that with effect from 1 4 66 all the Apprentice TXRS. (Diploma holders as well as others) on successful completion of their training should be straightaway brought on to the scale Rs. 205 280 (AS) instead of being first absorbed in scale Rs. 180 6 240 as at present. Consequenty they should be allowed stipend in scale Rs. 180 6 210 during the period of their training. As regards the apprentice TXRS. who are undergoing training at present, and will not be brought on to the work working posts before 1 4 66, it has been decided that from the date of this letter, they should be allowed stipend in scale Rs. 180 6 210 during the remaining period of their training. Their period of training should also be increased to 5 years, on completion of which they should be put on to the working posts in scale Rs. 205 280 (AS). The Apprentice TXRS. who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 against the quota of 80% vacancies reserved for them. Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade. The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRS. in scale Rs. 180 240 on a selection basis. While computing the number of posts available for promotion of TXRS. in scale Rs. 180 240 the vacancies likely to occur during the period 190 of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account. In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66, who cannot be absorbed in the anticipated vacancies which will arise by the time they qualify. " The petitioner, Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on the Northern Railway. He was selected for the training for the post of Train Examiner Grade 'D ' on June 5, 1958 and was confirmed in that grade on October 25, 1959. The case of the petitioner is that he alongwith the direct recruits formed one class in Entry grade 'D ' and their condition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade 'D ' and promotion to Grade 'C ' was on the basis of seniority cum suitability test irrespective of the source of recruitment. It was alleged that there was no difference between the apprentices and those selected out of the skilled artisans when they entered Grade 'D ' and that portion of the impugned notification which gave a favourable treatment to the direct recruits in Grade 'D ' with regard to promotion to Grade 'C ' was arbitrary and discriminatory and violated the guarantee under articles 14 and 16 of the Constitution. It was contended that the petitioner having been brought to grade 'D ' by undergoing the necessary selection and training and having been integrated with the others who had been brought in through direct recruitment in grade 'D ' could not be differentiated for the purpose of promotion to the senior Grade 'C '. The petitioner has therefore moved this Court for the grant of a writ under article 32 of the Constitution to quash the notification of the Railway Board dated October 27, 1965. In the counter affidavit respondent No. 1 has denied that there was any violation of the guarantee under articles 14 and 16 of the Constitution. It was conceded that prior to April 1, 1966 promotion to the post of Grade 'C ' Train Examiner was on the basis of seniority cum suitability but the impugned notification was issued by the first respondent because it Was decided that the posts of senior Train Examiners in Grade 'C ' should be filled by men possessin adequate technical knowledge and so the period of training of senior Train Examiners was increased and it was decided that in future 80 per cent of the vacancies in 'C ' grade should be filled directly by Apprentice Train Examiners and the remaining 20 per cent was to be made available for recruitment from the category of Train Examiners to which the petitioner belonged. This recruitment of 20 per cent vacancies was to be made on the basis of merit. It was said that the reorganisation of the Service was made with a view to obtain a better and more technically trained class of Train Examiners. The reason was that 191 there were more complicated designs. of Carriages and Wagons, acquisition of modern type of Rolling Stock and greater speed of trains under dieselisation and electrification programmes. It was. considered that there should be a better calibre of technically trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock. In view of the decision to recruit Apprentice Train Examiners directly in 'C ' Grade with effect from April 1, 1966 those who were Apprentice Train Examiners in Grade 'D ' before that date had to be upgraded in the scale of Rs. 205 280. It was therefore thought that these posts should be upgraded "so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1, 1966". The first respondent has also controverted the allegation of the petitioner that the procedure outlined in the impugned notification dated October 27, 1965 in regard to the upgraded vacancies was discriminatory. The main question to be considered in this case is whether the notification by the first respondent dated October 27, 1965 is violative of articles 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade 'C '. According to the impugned notification the existing Apprentice Train Examiners who had already been absorbed in grade 'D ' by March 31. 1966 should first be accommodated in grade 'C ' in 80% of the vacancies reserved for them without undergoing any selection. With regard to 20% of the vacancies there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and not by the test of seniority cum suitability which prevailed before the date of the impugned notification. It was not disputed by Mr. Mehta on behalf of the petitioner that the Railway Board was competent to say that with effect from April 1, 1966 vacancies in the Entry grade posts of Train Examiners should not be filled from Apprentice Train Examiners upto 50% but should be exclusively filled by promotion from amongst artisan staff. As regards the recruitment to grade 'C ', the impugned notification states that with effect from April 1, 1966 all the Apprentice. Train Examiners on successful completion of their training should be straightaway brought on to the scale Rs. 205 280 instead of being first absorbed in scale Rs. 180 6 240 as at present. The period of training was also increased to 5 years on completion of which they should be put on to the working posts in scale Rs. 205 280. So far as this portion of the notification is concerned, Counsel for the petitioner did not raise any constitutional objection. But the contention of the petitioner is that the following portion of the notification was. constitutionally invalid: "The Apprentice TXRS. who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 192 against the quota 80% vacancies reserved for them. Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade. The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of TXRs in scale Rs. 180 240 on a selection basis. " In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct. At the time when the petitioner and the direct recruits were appointed to Grade 'D ', there was one class in Grade 'D ' formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade 'D ' were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade 'C '. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade 'C '. In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority cum suitability, and there was no rule of promotion separately made for application to the direct recruits. As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade 'D ' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade 'C ' upto 80 per cent of vacancies reserved for them without undergoing any selec tion. As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned. In our opinion, the present case falls within the principle of the recent decision of this Court in Mervyn vs Collector(1). In that case, the petitioners who were Appraisers in the Customs Department filed a writ petition under article 32, challenging the validity of the "rotational" system as applied in fixing the seniority of Appraisers and Principal Appraisers. The system, as laid down in the relevant departmental circulars was that vacancies occurring in the cadre of Appraisers were to go alternatively to 'promotees ' and 'direct recruits '. According to the petitioners of that case this resulted in inequality, especially in view of the fact that the number of direct recruits over the years was very low. Promotion to the (1) ; 193 grade of Principal Appraisers was from the cadre of Appraisers; only those who had served as Appraisers for five years were entitled to be promoted to the higher grade. Since the direct recruits had to wait for five years before they could become Principal Appraiser the promotees below them who had put in five years as Appraisers became Principal Appraisers. In order to restore the seniority of the direct recruits thus lost, the rotational system was applied to the cadre of Principal Appraisers also i.e., one vacancy was to go to a promotee and the other to a direct recruit. The plea of inequality in violation of article 16(1) of the Constitution was raised by the petitioners in respect of this also. It was held by this Court, in the first place, that there was no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees. It was held in the second place that the same could not be said when the rotational system was applied to the recruitment of Principal Appraisers. The source of recruitment for these was one only, namely, the grade of Appraisers. There was no question of any quota being reserved from two sources in their case. In so far therefore as the Government was doing what it called res toration of seniority of direct recruits in Appraisers grade on their promotion to the higher grade it was clearly denying equality of opportunity under article 16 of the Constitution. At page 606 of the Report Wanchoo, J., as he then was, speaking for the Court observed as follows: "This brings us to the question of Principles Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment. In a case therefore where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers ' grade when they are promoted to the Principal Appraisers ' grade, it is clearly denying equality of opportunity LP(N)ISCI 14 194 to Apprasiers which is the only source of recruitment to the Principal Appraisers ' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five, years ' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers ' grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers ' grade is a direct recruit or a promotee. This will as we have already said be subject to the government 's right to revert any one promoted as a Princivil Appraiser if he is not found fit for the post during the period of probation. The petition therefore will have to be allowed with respect to the method by which seniority is fixed, in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one. " We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner at the time he entered Grage 'D and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B ', laid down that promotion to Grade 'C ' from Grade 'D ' was to be based on seniority cum suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there,, 195 is no warrant for this argument. It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest. In the language of juris prudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows: "So we may find both contractual and status obligations produced by the same transaction. the one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations de fined by the law,itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to Which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of contract into that of status." .lm0 (Salmond and Williams on Contracts, 2nd edition p. 12). 196 We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that Counsel for the petitioner has been unable to make good his submission on this aspect of the case. But for the reasons already expressed we hold that the impugned part of the notification violates the guarantee under articles 14 and 16 of the Constitution and a writ in the nature of mandamus should be issued commanding the first respondent not to give effect to the impugned part of the notification, viz.,: "The Apprentice T.X.Rs. who have already been or will be absorbed in scale Rs. 180 240 upto 31 3 66 should first be accommodated in scale Rs. 205 280 against the quota of 80% vacancies reserved for them. Such staff should not be required to undergo a 'Selection ' before being absorbed in that grade. The upgraded vacancies in scale Rs. 205 280 left over after earmarking those for the apprentices under training on 2 4 66 should be filled by promotion of T.X.Rs. in scale Rs. 180 240 on a selection basis. While computing the number of posts available for promotion of T.X.Rs. in scale Rs. 180 240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1 4 66 should also be taken into account. In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1 4 66, who cannot be absorbed in the anti cipated vacancies which will arise by the time they qualify. " The application is accordingly allowed, but there will be no ,order with regard to costs in this case. Writ Petition No. 203 of 1966 The material facts of this case are parallel to those in Writ Petition No. 154 of 1966 and for the reasons already given we hold that the petitioner is entitled to the grant of a writ in the nature of mandamus commanding the respondents not to give effect to the impugned part of the notification dated October 27, 1965, Annexure 'D ' to the Writ Petition. The application is accordingly allowed, but there will be no order as to costs in this case. Petitions allowed.

Vacancies in grade 'D ' of Train Examinations were filled by (a) direct recruits i.e., apprentice train examiners who had completed the prescribed period of training, and (b) promotees from skilled artisans. Promotion from Grade 'D ' to 'C ' was on the basis of seniority cum suitability. In October 1965 the Railway Board issued a notification by which it was provided that eighty per cent of the vacancies in Grade 'C ' were to be filled up from apprentice train examiners recruited on and after April 1, 1966 and the remaining twenty per cent by train examiners from Grade 'D '. The notification further provided that apprentice train examiners who had already been absorbed in Grade D before April 1966 should en bloc be accommodated in Grade 'C ' in the eighty per cent of the vacancies without undergoing any selection and with regard to twenty per cent of the vacancies, reserved for the other class promotion was to be on selection basis and not on the basis of seniority cum suitability. The petitioner who entered Railway service in 1954 as a skilled artisan and was selected and confirmed in Grade 'D ' filed a Writ Petition in this Court challenging that part of the notification which gave favourable treatment to apprentice train examiners who had already been absorbed in Grade 14 'D ' as arbitrary and discriminatory and violative of Articles t4 and 16 of the Constitution. It was also contended that the earlier order laying down that promotion to grade 'C ' was to be based on seniority cum suitability had become a contractual condition of service and could not be altered to the prejudice of the petitioner. HELD: (i) The impugned part of the notification violated the guarantee under Articles 14 and 16 of the Constitution. Once the direct recruits and promotees were absorbed in one cadre, they formed one class and they could not be discriminated against for the purpose of further promotion to the higher grade 'C '. Before the impugned notification was issued there was only one rule of promotion applicable to both direct recruits and promotees. By the impugned notification a discriminatory treatment was made in favour of the existing apprentice Train Examiners who had already been absorbed in grade 'D ' because, the notification provided that this group of apprentice train examiners should first be accommodated en bloc in grade 'C ' up to eighty per cent of the vacancies reserved for them without undergoing any selection; whereas in the twenty per cent of the vacancies available to the category of Train Examiners to which the petitioner belonged the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned. [192 D G]. 186 Mervyn vs Collector, ; relied on. (ii) The petitioner had no vested contractual right in regard to the terms of his service. The legal position of a Government servant is more one of status than of contract. Once appointed to his post or office a Government servant acquires a status and his rights and obligations are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. [195 B C].

Criminal Appeal No. 322 of 1987. From the Judgment and Order dated 19.1.1987 of the Bombay High Court in Criminal Writ Petition No. 103 of 1986. 672 Hardev Singh and Ms. Madhu Moolchandani for the Appellant. B.A. Masodkar, A.S. Bhasme and A.M. Khanwilkarforthe Respondent. The Judgment of the Court was delivered by SEN, J. This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated January 19, 1987 rejecting the petition under article 226 of the Constitution filed by the appellant in the High Court for grant of a writ of habeas corpus. The appellant has been placed under detention by the impugned order dated September 7, 1986 passed by the District Magistrate, Beed under section 3(2) of the on his being satis fied that it was necessary to do so 'with a view to prevent ing him from acting in any manner prejudicial to the mainte nance of public order '. The appellant challenged the im pugned order of detention on grounds inter alia that there was infraction of the constitutional safeguards enshrined in article 22(5) read with section 8 of the Act inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation. On the view that we take, it is not necessary to deal with the facts elaborately. The material facts are these. The appellant was taken into custody on September 8, 1986 and was lodged at the Aurangabad Central Prison, Aurangabad where he is now detained. He was served with the grounds of detention along with the copies of the relevant documents on September 14, 1986. It appears that a week thereafter i.e. on September 22, 1986 he addressed a representation to the Chief Minister through the Superintendent, Aurangabad Cen tral Prison, Aurangabad which the Superintendent forwarded to the Home Department on September 24, 1986. The State Government, in the meanwhile, under section 3 (4) of the Act accorded its approval to the impugned order of detention on September 18, 1986. On October 6, 1986 the appellant made another representation to the Advisory Board which met and considered the same on October 8, 1986. On October 13, 1986 the Advisory Board after considering the representation made by the appellant together with the materials placed before it forwarded its report to the State Government recommending confirmation of the impugned order of detention as there was, in its opinion, sufficient cause for the detention of the appellant. Acting upon the report of the Advisory Board, the State Government by its order dated November 19, 1986 confirmed the order of detention. In the mean 673 time, the appellant moved the High Court on November 13, 1986. The main ground on which the legality of the impugned order of detention was assailed in the High Court was that although the appellant had addressed a representation to the Chief Minister on September 22. 1986, it was not considered and disposed of by the Chief Minister till November 17, 1986 i.e. there was unexplained, unreasonable delay in disposal of the same. It was said that such unreasonable delay in disposal of the representation was sufficient to render the continued detention of the appellant illegal. The High Court did not think it necessary to call upon the respondents and by an oral judgment dismissed the writ petition mainly on the ground of imperfect pleadings. It observed that the appellant had not specifically pleaded that there was unrea sonable delay in the office of the Chief Minister which had not been explained and therefore the detention was illegal, but his grievance was that his representation had not been considered. It referred to paragraph 4 of the writ petition where it is submitted: "It is submitted that in law, the State Gov ernment is bound to consider the representa tion before the decision of the Advisory Board, but in the instant case neither the State Government has considered the represen tation of the petitioner nor the Government has communicated its decision. " It referred to the underlined portion of the averments in paragraph 4 of the writ petition, namely: "Eight weeks have elapsed since the date of detention of the petitioner but still neither the State Government has taken any decision on the representation forwarded through the Home Department nor the petitioner is communicated any decision pursuant to the report . . " The High Court distinguished the decision of this Court in Harish Pahwa vs State of Uttar Pradesh & Ors., ; on the ground that in that case the Court had before it the affidavit of the Government showing that it had no explanation to offer except that it had referred the matter to the Law Department and also there was sufficient material to show that there was unreasonable delay in dealing with the representation whereas in the present case there was no such ground raised. The High Court disallowed the prayer for grant of a writ of habeas corpus mainly on the ground of defective pleadings, and 674 added that the appellant "had not even asked for time to amend the petition" and "put the respondents to notice". It observed: "While the State undoubtedly has the duty to process the representation of the detenu promptly, it is also the duty of the petition er to make specific adverments of facts and their effect, if necessary, by amendment. This is necessary to put the respondents to notice, that the effect of these facts have to be answered and explained. The respondents may have an explanation as to why the Chief Minis ter took so much time. On such submission we cannot hold that the respondents have failed to explain delay or that the time taken by the Chief Minister was wholly necessary. We should not be understood to have held that the time taken by the Government was justified. Far from it. But we cannot allow the petitioner to take the respondents by surprise by such a style of pleading. " It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permit ted to raise grounds not taken in the petition at the hear ing. The same rule cannot be applied to a petition for grant of a writ of habseas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provi sions of the Act but also strictly in accord with the con stitutional safeguards embodied in article 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under article 166 of the Constitution to pass orders on behalf of the Govern 675 ment in such matters: Niranjan Singh vs State of Madhya Pradesh, ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar & Anr., ; and Mohd. Alam vs State of West Bengal, ; In the present case, in answer to the notice issued by this Court under article 136, the affidavit in reply has been filed by Shri S.V. Joshi, District Magistrate, Beed who passed the impugned order of detention. There is a general denial in paragraph 2 of the counter affidavit that there was unreasonable delay in the disposal of the representation made by the appellant. However, the delay in disposal of the representation was in the Secretariat and therefore it is averred in paragraph 11: "I say that the affidavit filed by Shri Vish wasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay on behalf of State of Maharashtra in the High Court Bench at Aurangabad will reveal that different steps, as required by the provisions of Na tional Security Act, 1980 are taken immediate ly, within stipulated period." and it is then averred in paragraph 12 that the contentions raised by the appellant with regard to delay have been dealt with by the High Court while deciding the writ petition. It is said that the appellant has raised the contention about unreasonable delay in disposal of his representation, for the first time in this Court presumably on the reasoning of the High Court. There is on record an affidavit sworn by I.S. Vishwasrao, Desk Officer, Home Department (Special), Mantralaya, Bombay in answer to the grounds 16(A) and 16(E). As regards the grounds 16(A) and 16(E) formulated in the petition for grant of special leave regarding unreasonbale delay, it is averred in paragraph 3 of the affidavit: "I say that the representation dated 22nd September, 1986 addressed to the Chief Minis ter by the detenu was forwarded by the Super intendent, Aurangabad Central Prison, Auranga bad on 24th September, 1986. I further say that the said representation was received in the Department on 26th September, 1986. I further say that the parawise remarks on the said representation were called for from the detaining authority, i.e. District Magistrate, Beed on 26th September, 1986 and remarks of the District Magistrate dated 3rd October, 1986 were received by the 676 Government on 6th October, 1986. I further say that thereafter, the said representation was processed together with report of the Advisory Board and as stated in the earlier paragraphs, the said representation was rejected and the detention of the detenu was confirmed by the Chief Minister on 17th November, 1986. " In the same paragraph, there is the following averment made with regard to delay in disposal of the representation in the Chief Minister 's Secretariat: "I further say that the Chief Minister was pre occupied in connection with very important matters of the State which involved tours as well as meetings outside Bombay. I further say that during the period from 23.10.1986 to 17.11. 1986, two Cabinet meetings were held at Pune and Aurangabad, each meeting lasting for two days i.e. 28th and 29th October, 1986 at Pune and 11th and 12th November, 1986 at Aurangabad. I further say that such meetings in Pune and Aurangabad are generally held once a year to focus the attention on regional problems. I further say that the preparations for these meetings as well as other meetings held with the concerned Ministers and offi cials demanded a lot of time of the Chief Minister and this naturally resulted in some delay in disposing of several cases submitted to the Chief Minister including this case. I further say that the cases where such repre sentations are made in the detention matters, they required a close scrutiny of all the relevant record and careful application of mind. I therefore, respectfully submit that the time taken for passing the Government order in this case should be viewed in the light of the averments made in this affidavit and therefore, if properly considered, it cannot be said that the delay in disposing of the representation is unreasonable and unex plained. " It is somewhat strange that the State Government should have acted in such a cavalier fashion in dealing with the appellant 's representation addressed to the Chief Minister. We are satisfied that there was failure on the part of the Government to discharge its obligations under article 22(5). The affidavit reveals that there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated 677 October 6, 1986. While the Advisory Board acted with com mendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report together with the materials on October 13, 1986, there was utter callousness on the part of the State Government to deal with the other representation addressed to the Chief Minister. It was not till November 17, 1986 that the Chief Minister condescended to have a look at the representation. When the life and liberty of a citizen is involved, it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from anti social activi ties can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of in sistence on observance of the procedural safeguards. Apart from the admitted inordinate delay, there is a fundamental defect which renders the continued detention of the appellant constitutionally invalid. As observed by one of us (Sen, J.) in Narendra Purshotam Umrao vs B.B. Gujral & Ors., ; there was a duty cast on the Govern ment to consider the representation made by the detenu without waiting for the opinion of the Advisory Board. The constitution of.an Advisory Board under section 9 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. It goes without saying that the constitu tional right to make a representation guaranteed by article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the repre sentation by the authority to whom it is made. The right of representation under article 22(5) is a valuable constitutional right and is not a mere formality. The representation made by the appellant addressed to the Chief Minister could not lie unattended to in the portals of the Secretariat while the Chief Minister was attending to other political affairs. Nor could the Government keep the representation in the archives of the Secretariat till the Advisory Board submit ted its report. In Narendra 'Purshotam Umrao 's case it was observed: "Thus, the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand, and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations, independent of each other. " After referring to the decisions of this Court in Abdul Karim vs State of West Bengal, ; ; Pankaj Kumar Chakrabarty vs State of West Bengal, ; 678 and Khairul Haque vs State of West Bengal, W.P. No. 246 of 1969, decided on September 10, 1969 the nature and dual obligation of the Government and the corresponding dual right in favour of the detenu under article 22(5) was reiterat ed. The following observations of the Court in Khairul Haque 's case were quoted with approval: "It is implicit in the language of article 22 that the appropriate Government, while dis charging its duty to consider the representa tion, cannot depend upon the view of the Board on such representation. It has to consider the representation on its own without being influ enced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioner 's representation until it had received the report of the Advisory Board. As laid down in Abdul Karim vs State of West Bengal, the obli gation of the appropriate Government under article 22(5) is to consider the representation made by the detenu as expeditiously as possi ble. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be ex pressed by the Advisory Board. The fact that article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In the circumstances, there being a failure on the part of the State Government to consider the representation made by the appellant addressed to the Chief Minister without wait ing for the opinion of the Advisory Board, renders the continued detention of the appellant invalid and constitu tionally impermissible. We have no manner of doubt that there is no explanation whatever much less any reasonable explanation for the inor dinate delay in consideration of the representation made by the appellant addressed to the Chief Minister and that by itself is sufficient to invalidate the impugned order of detention. In fact, no one has filed any affidavit to ex plain the cause for the delay in Chief Minister 's Secretari at. The counter affidavit filed by Shri S.V. Joshi, District Magistrate contains 679 a bare denial in paragraph 2 that there was any unreasonable delay in the disposal of the representation. As regards the delay in disposal of the representation in the Secretariat, he adverts in paragraph 11 to the affidavit filed by Vish wasrao, Desk Officer, Home Department on behalf of the State Government and asserts that it reveals the different steps that were taken and in paragraph 12 he submits that the contention about unreasonable delay in disposal of the representation by the State Government was not raised in the High Court and it has been taken for the first time in this Court. Even so, the appellant having raised the ground in appeal it was the duty of the State Government to have placed all the material along with the counter affidavit. There is in fact no explanation offered as regards the delay in disposal of the representation in the Secretariat. We have already extracted the relevant portion from the affida vit of Vishwasrao, Desk Officer. It is accepted that the representation made by the appellant to the Chief Minister on September 22, 1986, forwarded by the Superintendent, Aurangabad Central Prison on the 24th, was received in the Home Department on the 26th which in its turn forwarded the same to the detaining authority i.e. the District Magistrate on the same day i.e. 26th for his comments. The District Magistrate returned the representation along with his com ments dated October 3, 1986 which was received by the Gov ernment on the 6th. It is said that thereafter the represen tation was processed together with the report of the Adviso ry Board and was forwarded to the Chief Minister 's Secre tariat where the same was received on October 23, 1986. It is enough to say that the explanation that the Chief Minis ter was "pre occupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986" was no explanation at all why the Chief Minister did not attend to the representation made by the appellant till November 17, 1986 i.e. for a period of 25 days. There was no reason why the representation submitted by the appellant could not be dealt with by the Chief Minis ter with all reasonable promptitude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation. In view of the wholly unex plained and unduly long delay in the disposal of the repre sentation by the State Government, the further detention of the appellant must be held illegal and he must be set at liberty forthwith. For these reasons, the appeal must succeed and is allowed. The judgment and order passed by the High Court are set aside and the appellant is directed to be set at liberty forthwith. P.S.S. Appeal allowed.

The appellant was placed under detention on September 8, 1986, consequent upon an order of detention passed by the District Magistrate, Beed under section 3(2) of the on his being satisfied that it was neces sary to do so 'with a view to preventing him from acting in any manner prejudicial to the maintenance of public order '. He was served with the grounds of detention alongwith copies of the relevant documents on September 14, 1986. He ad dressed a representation to the Chief Minister, State of Maharashtra on September 22, 1986 through the Superintend ent, Central Jail, Aurangabad, who forwarded the same to the State Government, Home Department which received it on September 26, 1986, and on the same day forwarded it to the District Magistrate for his comments. On October 3, 1986, the District Magistrate returned the representation along with his comments and the same were received in the Home Department on October 6, 1986. The State Government had, in the meanwhile, accorded its approval to the impugned order of detention under section 3(4) of the Act on September 18, 1986. On October 6, the appellant made another representation to the Advisory Board against the order of detention. 669 The Advisory Board met on October 8, 1986, considered the representation and forwarded its report to the State Govern ment on October 13 recommending confirmation of the order of detention. Thereafter, the representation made by the appel lant was processed in the Home Department along with the report of the Advisory Board and forwarded to the Chief Minister 's Secretariat where the same was received on Octo ber 23, 1986. The representation remained undisposed in the Chief Minister 's Secretariat and was put up before him on November 17, 1986 and he rejected the same. Upon these facts, the appellant moved the High Court by a petition under article 226 of the Constitution for the grant of a writ of habeas corpus on the next day i.e. on November 18, 1986 contending that his continued detention was uncon stitutional and void inasmuch as there was inordinate, unexplained delay on the part of the detaining authority to consider and dispose of his representation which was in violation of the constitutional safeguards enshrined in article 22(5) read with section 8 of the . The writ petition was dismissed by the High Court inter alia on the ground of defective pleadings regarding the delay in Chief Minister 's Secretariat in dealing with the representation. In the appeal by special leave, the District Magistrate in his counter affidavit denied that there was any unreason able delay in the disposal of the representation and submit ted that no such ground regarding unreasonable delay was taken in the High Court in the writ petition, and was raised for the first time before this Court, presumably on the reasoning of the High Court. In the other counter affidavit the Desk Officer, Home Department (Special) explained the reasons for the delay in the Chief Minister 's Secretariat asserting that the Chief Minister remained preoccupied with very important matters of the State during the period from October 23, 1986 to November 17, 1986 and therefore it was not possible for him to have dealt with the representation earlier. Allowing the appeal, HELD: 1.The continued detention of the appellant was illegal and he must be set at liberty forthwith. [679G] 2.1 It is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safe guards embodied in article 22(5). [674F] 670 2.2 The constitutional right of the detenu to make a representation guaranteed by article 22(5) is a valuable right and is not a mere formality. It includes by necessary impli cation the constitutional right to a proper consideration of the representation by the authority to whom it is made. [677E] In the instant case, there were two representations made by the appellant, one to the Chief Minister dated September 22, 1986 and the other to the Advisory Board dated October 6, 1986. While the Advisory Board acted with commendable despatch in considering the same at its meeting held on October 8, 1986 and forwarded its report on October 13, 1986, it was not till November 17, 1986 that the Chief Minister look at it. There was no reason why he could not deal with it with all reasonable promptitude and diligence. The explanation that he remained preoccupied with very important matters of the State, which involved tours as well as Cabinet meetings, was no explanation at all. There was therefore, failure on the part of the Government to dis charge its obligations under article 22(5). [676H 677B; 679F, 679E, 676G] 2.3 The constitution of an Advisory Board under section 9 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. The two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand, and to give an earliest opportunity to him to make a representation and consider the representation on the other, are two distinct obligations independent of each other. There is thus a duty cast on the Government to consider the representation made by the detenu without waiting for the opinion of the Adviso ry Board. [677E, G, D] Narendra Purshotam Umrao vs B.B. Gujral & Ors. ; , referred to. The failure of the Government in the instant case to consider the representation without waiting for the opinion of the Advisory Board renders the continued detention of the appellant invalid and constitutionally impermissible. [678F] 3. In return to the rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention, and he must explain his subjective satisfaction and the grounds therefore and if for some good reason the District Magistrate is not avail able, the 671 affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other officer duly authorised under the Rules of Business framed by the Governor under article 166 of the Constitution to pass orders on behalf of the Government in such matters. [674F 675A] Niranjan Singh vs State of Madhya Pradesh ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar & Anr., ; and Mohd. Alam vs State of West Bengal, ; , referred to. In the instant case, no one has filed any affidavit to explain the delay in the Chief Minister 's Secretariat. The counter affidavit filed by the District Magistrate contains a bare denial that there was any unreasonable delay in the disposal of the representation. As regards the delay in the Secretariat he adverts to the affidavit filed by the Desk Officer, Home Department and asserts that it reveals the different steps that were taken. There is in fact no expla nation offered as regards the delay in the disposal of the representation in the Secretariat. [678G 679C] 4. It was an improper exercise of power on the part of the High Court in disallowing the writ petition on the ground of imperfect pleadings. The rule that a petitioner cannot be permitted to raise grounds not taken in the peti tion at the hearing cannot be applied to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. [674DE] In the appeal the appellant having raised the ground of delay in disposal of his representation in Chief Minister 's Secretariat it was the duty of the State Government to have placed all the material along with the counter affidavit. [679B]

Appeal No. 327 of 1959. Appeal from the order dated June 28, 1956, of the Bombay High Court at Nagpur in Misc. First Appeal No. 15 of 1954. 98 774 A. V. Viswanatha Sastri, Shankar Anand and A. G. Batnaparkhi, for the appellant. K. N. Rajagopal Sastri, as amicus curiae. November 29. The Judgment of the Court was delivered by SHAH, J. Ramachandra Dhondo Datar hereinafter referred to as the respondent was employed by the appellant company in its publications branch. By agreement dated March 23, 1943, the appellant company agreed to pay to the respondent as from April 1, 1943, remuneration per annum equal to 3 1/2% of the gross sales or Rs. 12,000 whichever was greater. The agreement was to remain in operation for ten years from April 1, 1943, in the first instance and was renewable at the option of the respondent for such period as he desired. By notice dated April 19, 1948, served on the respondent on April 22, 1948, the appellant company terminated the employment of the respondent. The respondent then filed a civil suit in the court of the Fifth Additional District Judge, Nagpur, for a decree for Rs. 1,30,000 being the amount of compensation for wrongful termination of employment, arrears of salary and interest. On July 17, 1953, the court after giving credit for the amount received by the respondent passed a decree for Rs. 42,359 (which was inclusive of Rs. 36,000 as compensation for termination of employment and Rs. 6,000 as salary in lieu of six months notice and interest) and costs and interest on judgment. The respondent then applied for execution of the decree and claimed Rs. 54,893 12 0 less Rs. 18,501 10 0 decreed against him in a cross suit filed by the appellant company. The Income Tax Officer, Nagpur, served a notice under section 46 of the Indian Income Tax Act upon the respondent and also gave intimation to the District Judge, Nagpur, that the appellant company be permitted to deduct at source and to pay into the Government Treasury Rs. 15,95613 0 as income tax, surcharge and super tax due on the sum of Rs. 50,972 2 0 awarded to the respondent. The appellant company also applied that the 775 executing Court do declare that the appellant company was entitled and in law bound to deduct the tax due on the amount. The learned Judge directed the appellant company to pay to the Income Tax Department Rs. 15,956 13 0 on account of income tax and super tax on the amount due to the respondent and directed it to pay the balance in court after filing a receipt for payment of tax from the Income Tax department. In appeal to the High Court of Judicature at Nagpur, the order passed by the District Judge was reversed and execution as claimed by the respondent was directed. The appellant company contends that under section 18(2) of the Income Tax Act, it was bound to deduct the tax computed at the appropriate rate on the salary payable to the respondent as the amount due under the decree represented salary. Section 18 sub section (2) of the Income Tax Act in so far as it is material provides that any person paying any amount chargeable under the head "salaries" shall at the time of payment deduct income tax and super tax at the rate representing the average of the rates applicable to the estimated total income of the assessee under the head "salary". Sub section (7) declares that a person failing to deduct the taxes required by the section shall be deemed to be an assessee in default in respect of such tax. The Legislature has, it is manifest, imposed upon the employer the duty to deduct tax at the appropriate rate on salary payable to the employee and if he fails to do so, the tax not deducted may be recovered from him. But the liability to deduct arises in law, if the amount is due and payable as salary. In this case, there has been no assessment of tax due by the Income Tax Officer on the amount payable to the respondent. Under section 46(5), any person paying salary to an assessee may be required by the Income Tax Officer to deduct arrears of tax due from the latter and the employer is bound to comply with such a requisition and to pay the amount deducted to the credit of the Government. But this order can only be passed if income tax has been assessed and has remained unpaid. It is undisputed that at the, material 776 time, no tax was assessed against the respondent; the Income Tax Officer had accordingly no authority to issue a notice under section 46(5). Nor could the Income Tax Officer claim to recover tax due by a proceeding in the nature of a garnishee proceeding by applying to the civil court to attach the Judgment debt payable by the company. The application submitted by the Income Tax Officer must therefore be ignored. Undoubtedly, the employer is by section 18 of the Act liable to deduct from the salary payable by him to his employee the amount of tax at the average rate appli cable to the estimated total income; but can it be said that as between the appellant company and the respondent the decretal amount represented salary? The respondent had filed a suit for a decree for arrears of salary, compensation for wrongful termination of employment and interest. The court having passed a decree on that claim, it became a judgment debt. It may have been open to the appellant company in the suit to apply to the court for making a provision in the decree for payment of income tax due by the respondent, but no such provision was made. We are not concerned to decide in this appeal whether in the hands of the respondent the amount due to him under the decree, when paid, will be liable to tax; that question does not fall to be determined in this appeal. The question to be determined is whether as between the appellant company and the respondent the amount decreed is due as salary payment of which attracts the statutory liability imposed by section 18. The claim decreed by the civil court was for compen sation, for wrongful termination of employment, arrears of salary, salary due for the period of notice and interest and costs, less withdrawals on salary account. The amount for which execution was sought to be levied was the amount decreed against which was set off the claim under the cross decree. A substantial part of the claim decreed represented compensation fir wrongful termination of employment and it would be difficult to predicate of the claim sought to be enforced what part thereof if any represented salary due. Granting that compensation payable to an 777 employee by an employer for wrongful termination of employment be regarded as in the nature of salary, when the claim is merged in the decree of the court, ' the claim assumes the character of a judgment debt and to judgment debts section 18 has not been made applicable. The decree passed by the civil court must be executed subject to the deductions and adjustments permissible under the Code of Civil Procedure. The judgment debtor may, if he has a cross decree for money, claim to set off the amount due thereunder. If there be any adjustment of the decree, the decree may be executed for the amount due as a result of the adjustment. A third person who has obtained a decree against the judgment creditor may apply for attachment of the decree and such decree may be executed subject to the claim of the third person: but the judgment debtor cannot claim to satisfy, in the absence of a direction in the decree to that effect the claim of a third person against the judgment creditor, and pay only the balance. The rule that the decree must be executed according to its tenor may be modified by a statutory provision. But there is nothing in the Income Tax Act which supports the plea that in respect of the amount payable under a judgment debt of the nature sought to be enforced, the debtor is entitled to deduct income tax which may become due and payable by the judgment creditor on the plea that the cause of action on which the decree was passed was the contract of employment and a part of the claim decreed represented amount due to the employee as salary or damages in lieu of salary. Counsel for the appellant company strongly relied upon the decision of the House of Lords in Westminster Bank Ltd. vs Riches (1). That was a case in which in an action brought by one R against the Westminster Bank trustee of the estate of one X R was awarded a decree for pound 36,255 principal and pound 10,028 as interest. The Bank thereafter brought an action for a declaration that it had satisfied the judg ment in the action by R by paying him the amount (1) 18 Tax Cases 159. 778 due less pound 5,014, the latter sum representing income tax on the interest awarded by the judgment. It was held by the House of Lords that pound 10,028 was "interest of money" within Schedule D and General Rule 21 of the Income Tax Act, 1918, and that income tax was deductible therefrom. In that case, the only argument advanced on behalf of the Bank is set out in the speech of Viscount Simon, L. C. at p. 187: "The appellant contends that the additional sum of pound 10,028 though awarded under a power to add interest to the amount of the debt, and though called interest in the judgment, is not really interest such as attracts Income Tax, but is damages. The short answer to this is that there is no essential incompatibility between the two conceptions. The real question, for the purposes of deciding whether the Income Tax Acts apply, is whether the added sum is capital or income, not whether the sum is damages or interest." The House of Lords in that case by a majority held that pound 10,028 awarded under the judgment represented not capital but interest and was liable to tax. In our view, ' this case has no application to the facts of the present case. In the case before us, there is a decree passed in favour of the respondent: under the scheme of the Civil Procedure Code, that decree has to be executed as it stands, subject to such deductions or adjustments as are permissible under the Code. There was no tax liability which the respondent was assessed to pay in respect of this amount till the date on which the appellant company sought to satisfy the alleged tax liability of the respondent. As between the appellant company and the respondent, the amount did not represent salary; it represented a judgment debt and for payment of income tax thereon, no provision was made in the decree. The Civil Procedure Code bars an action of the nature which was filed in Westminster Bank 's case (supra). The defence to the execution if any must be raised in the execution proceeding and not by a separate action. The amount payable by the appellant company to the respondent was not salary but a judgment debt, and before paying that debt the appellant company could not claim 779 to deduct at source tax payable by the respondent. Nor could the appellant company seek to justify its plea on the ground that the judgment creditor was indebted to a third person. The principle of the case in Manickam Chettiar vs Income Tax Officer, Madura (1), on which reliance was also sought to be placed by the appellant company has no application to this case. In Manickam Chettiar 's case (1), in execution of a money decree certain properties belonging to a judgment debtor were attached and sold and the sale proceeds were received by the court. The Income Tax Officer who had assessed the decree holder to tax payable by him on his other income applied to the court for an order directing payment to him out of the sale proceeds the amount of income tax due by the decree holder. It was held that the claim for income tax was entitled to priority in payment and the court had inherent power to make an order on the application for payment of money due as income tax. Tax had admittedly been assessed, and proceedings substantially for recovery of the tax so assessed were adopted by the Income Tax Officer. It was held in the circumstances that the court had jurisdiction to direct recovery of tax out of the amount standing to the credit of the decree holder. The principle of that case can have no application to the facts of the present case. The respondent had not appeared before us, but we have been assisted by Mr. Rajagopala Sastri and we are indebted to him for placing the evidence and the various aspects of the case on a true appreciation of which the question in issue fell to be determined. The appeal fails and is dismissed. As there was no appearance for the respondent, there will be no order for costs. Appeal dismissed. (1) VI I.T. R. 180.

In a civil suit the respondent obtained a decree against his employer the appellant company for a sum which included com pensation for wrongful termination of his service, arrears of salary, interest and costs of the suit, and then applied for execution of the decree. The Income tax Officer served a notice upon the respondent under section 46 of the Indian Income tax Act and applied to the District Judge that the appellant be permitted to deduct at source the income tax, surcharge and super tax on the sum awarded to the respondent and pay the same in the Government Treasury. The appellant company also moved the executing court for a declaration that they were entitled and bound to deduct the tax due on the amount. The District judge directed the appellant company to pay the income tax and super tax to the Income Tax Department and pay the balance in Court together with a receipt for the income tax paid. In appeal the High Court reversed the order of the District judge and directed the execution of the decree as claimed by the respondent. On appeal by the appellant company, Held, that as no tax was assessed against the respondent the Income Tax Officer could not issue a notice under section 46(5) requiring the appellant company to deduct tax from the decretal amount. A substantial part of the decretal amount did not represent salary" of the respondent: it consisted of compensation for wrongful termination of the respondent 's service, salary in lieu of six months ' notice, interest and costs of the suit. It was a judgment debt and no provision for payment of income tax was made in the decree which was liable to be executed as prayed by the respondent. The appellant company was not therefore entitled or bound to deduct income tax under section 18 sub section (2) of the Act.

Civil Appeal Nos. 1988 1989 of 1970. From the Judgment and order dated the 29th day of October, 1968 of the Kerala High Court in W.P. No. 156 of 1967. V. A. Seiyed Muhamad and K. M. K. Nair, for the appellant (In C.A.No. 1988/70. K. M. K. Nair, for the appellant (In C.A. No. 1989/70) G. B. Pai, A. G. Meneses, for the respondent. The Judgment of the Court was delivered by KHANNA, J. This judgment would dispose of civil appeals No. 1989 and 1989 of 1970, Filed on certificate against the judgment of the Kerala High Court, whereby that court held that it was beyond the competence of the State Legislature to enact law contained in sub section (3) of section 22 of the Kerala General Sales Tax Act, 1963 (Act 15 of 1963) (hereinafter referred to as the Act) in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the. We may now set out the facts giving rise to one of the appeals. Both the learned counsel are agreed that the decision in that would also govern the other appeal. Under section 5 of the Act, tax is payable by a dealer on his tax able turnover. "Taxable turnover` ' is defined in section 2(xxv) of the Act as the turnover on which a dealer is liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed by the rules under the Act. It does not, however, include the turnover of purchase or sale in the course of inter State trade or commerce or in the course of export or import of goods. The Kerala General Sales Tax Rules have been framed be the State Government in exercise of the powers conferred by section 57 of the Act. According to clause (i) of rule 9 of the sail rules. in determining the taxable turnover the following amount shall be deducted from the total turnover of the dealer: "the excise duty, if any paid by the dealer to the Government of Kerala or the Central Government in respect of the goods sold by him". It may be stated that clause (i) was omitted subsequently but we are concerned with the period when that clause was an integral part of the rule. The respondent is an incorporated company engaged in the manufacture and sale of soaps, toilets and other goods. The respondent 's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs. 30,591.71 as sales tax in excess of the tax which the respondent was liable to pay under the Act. The respondent, it would appear, paid Rs. 6,62,958 as excise duty and deducted the same from its total turnover for the purpose of determining the taxable turnover. When, however, the respondent company sold the 154 goods it collected sales tax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods. This resulted in the respondent company realising Rs. 30,591.71 in excess of the sales tax payable in respect of the goods sold by it: The sales tax officer held that the respondent was liable to pay the aforesaid amount of Rs. 30,591.71 to the Government under section 22(3) of the Act. The respondent then filed writ petition in the Kerala High Court to challenge its liability to pay the aforesaid amount on the ground that the provisions of section 22 in so far as they imposed a liability on a dealer to pay over to the Government any amount collected by him as sales tax, even though that amount was not payable as tax, was unconstitutional. The learned single Judge dismissed the petition filed by the respondent. On appeal, however, the Division Bench held, as already mentioned earlier, that the impugned provision was beyond the legislative competence of the State Legislature. Sub section (3) of section 22 of the Act reads as under: "(3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable to under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid tax, pay over to the Government, in addition to the tax payable the amount so collected within such time and in such manner as may be prescribed. " The learned Judges of the High Court in holding the above provision. in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act to he beyond the legislative competence of the State Legislature, referred to entry 54 of the State List in the Seventh Schedule to the Constitution upon which reliance had been placed on behalf of the State. It was held that the State Legislature was incompetent to enact the impugned provisions contained in sub section (3) of section 22 of the Act under the above entry. In appeal before us Dr. Seiyed Muhammad on behalf of the appellants has assailed the judgment of the Division Bench of the High Court. As against that, Mr. Pai on behalf of the respondent has canvassed for the correctness of the said judgment. After hearing the learned counsel, we are of the opinion that there is no merit in these two appeals. A State Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of "taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I". Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter State trade or commerce, and we are not concerned with this entry. 155 Entry 54 enpowers State Legislatures to make law, except i certain cases with which we are not concerned, in respect of taxes on the sale or purchase of goods. As long as the law relates to taxes on the sale or purchase of goods, it would be within the competence of the State Legislature to enact such a law. It would not, however, b permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax. Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax. It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax. Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigibie under the State law as sales tax or purchase tax was wrongly realised as such by a dealer. The answer to such a question has to be in the negative. The matter indeed is not res integra and is concluded by two decisions of this Court. A Constitution Bench of this Court examined in the case of R. Abdul Quader & Co. vs Sales Tax officer, Hyderabad(1) the validity of section l l (2) of the Hyderabad Sales Tax Act, 1950 which reads as under: "(2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected lay him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue. " The appellant in that case collected sales tax from the purchasers of betel leaves in connection with the sales made by it. The appellant however, did not pay the amount collected to the government. The Government directed the appellant to pay the amount to the Government. The appellant thereupon filed a writ petition in the High Court questioning the validity of section 11(2). The main contention of the appellant before the High Court was that section 11(2) which authorised the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect (1) ; 156 under the authority of a law enacted under entry 54 of List II of the Seventh Schedule to the Constitution any such amount. The High Court upheld the validity of section 11(2). On appeal to this Court it was observed by the Constitution Bench as under: "The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government. Now it is clear that the sums so collected by way of tax arc not in fact tax exigible under the Act. So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision. the amount, though collected by way of tax, was not exigible as tax under the law." An attempt was made on behalf of the State in that case to sustain the validity of section 11(2) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax. This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected may be wrongly by way of tax is not exigible under the law. as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax. The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. vs State of Bihar & Anr.(1). In that case in determining the appellant 's turnover for assessment to sales tax for the year 1956 57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellant 's sales of cement. The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover. After the introduction of section 20 A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20 A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited. The appellant 's contention that section 20 A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution. On appeal filed by the assessee this Court held that sub sections (3), (4) and (5) of section 20 A were ultra vires the State legislature. As a corollary thereto, sub sections (6) and (7) of that section were also held to be invalid. Subsection (3) of section 20 A of the Bihar Sales Tax Act read as under: "(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of (1) 157 any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him. (b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may. after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected. " In holding sub section (3) and other impugned provisions of section 20 A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadar 's case (supra). Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act. This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra). Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act. Dr. Muhammad 's argument involves inventing a category of a "deemed tax" which is not there in the Act. The provisions of the Act contain a definition of "tax". This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act. "Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act. The amount which was realised by the respondent in excess of what was due as tax cannot 158 be held to be "tax", because such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act. The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, even though the same could not be recovered as tax under the Act. We would, therefore, dismiss the two appeals with costs. One hearing fee. V.P.S. Appeals dismissed.

According to r. 9(1) of the Kerala General Sales tax Rules framed under. the Kerala General Sales tax Act, 1963, in determining the taxable turnover of a dealer the excise duty, if any, paid by the dealer to the Government of Kerala or to the Central Government in respect of the goods sold by him shall be deducted. Section ,22(3) of the Act provides that if any dealer or person collects tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act such dealer or person shall pay to the Government. in addition to the tax payable, the amount so collected unless it was refunded to the person from whom it was collected. The respondent deducted the sum paid by it as excise duty from its total turnover for the purpose of determining the taxable turnover. The respondent, however, when it sold the goods. had collected, sales tax from the purchasers on the invoice prices without deducting therefrom the excise duty paid in respect of the said goods. This resulted in the respondent realising a sum in excess of the sales tax payable in respect of the goods sold by it. The Sales tax officer held that the respondent was liable to pay that amount to the Government under section 22(3). The writ petition filed by the respondent was allowed by the High Court on the ground that section 22(3) was not covered by Entry 54 of the State List in the VII Schedule to the Constitution, and hence, beyond the competence of the Slate Legislature. Dismissing the appeal to this Court. ^ HELD: (1) Entry 54 empowers the State Legislatures to make laws, except in certain cases, in respect of taxes on the sale or purchase of goods. As long as the law relates to taxes on the sale or purchase of goods, it would be within their legislative competence. But, it would not be permissible for. the State legislature to enact a law under Entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax. Such a l. would not be a law relating to tax of the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax. [1 55A C] (2) The ambit of ancillary or incidental power would not go to the extent of permitting the Legislature to provide that. though the amount collected, may be wrongly, be way of tax,, was not tax, it shall still be paid over to the Government as if it were a tax. [156D E] (3) The fact that the amount realised is in excess of the tax leviable and not as amount which was not at all payable as tax, would not make any difference. Any amount realised by a dealer in excess of the tax leviable, stands, for the purpose of determining the legislative competence under Entry 54, on the same footing as an amount not due as tax under the Act. Tax, according to section 2(xxiv) of the Act, means tax payable under the Act. This necessarily means that everything outside it, collected by the dealer. would be an exaction not authorised by the Act. The amount which was realised by the respondent in excess of what was due as tax cannot be held to be tax, because, such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under Entry 54 directing payment to the State of any amount collected as tax on transactions not liable to lax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised by a dealer in excess of the tax payable under the Act. [157G 158C] 153 R. Abdul Quader & co. vs Sales Tax Officer , Hyderabad and Ashoka Marketing Ltd. vs State of Bihar & Anr. followed.

N: Criminal Appeal No. 105 of 1978 with W.P. No. 833 of 1978. (Appeal by special leave from the Judgment and order dt. 27.9.77 of the Gujarat High Court in Criminal Spl. Application No. 176 of 1977) . Ram Jethmalani and H. section Parihar for the appellant in Cr. A. No. 105 and WP No. 833/78. M. N. Phadke and B. D. Sharma and M. N. Shroff for respondent No 1 Girish Chandra for respondent no 4. M. N. Shroff for respondents 1 3. R.B.Datar and Miss A. Subhashini for respondents 4 5. The Judgment of the Court was delivered by KAILASAM, J. After hearing the arguments we allowed the appeal on 5 10 1978 and directed that the detenu be set at liberty forthwith indicating that the detailed judgment would follow. We now proceed to give reasons for our order. This appeal is preferred by the wife of one Virendra Ramniklal Kapadia,, a detenu, by special leave against the judgment of the High Court of Gujarat at Ahmedabad dismissing the writ petition for the issue of a writ of habeas corpus. On 22nd September, 1974 the District Magistrate, Surat, directed. the detention of the detenu under section 3(1) (c) (i) and section 3 (2) of the . The detenu was supplied with the grounds of detention on 27th September, 1974. The 259 detention order passed under the A was cancelled on 9th December, 1974 and the detenu was released. On 7th February, 1977 by an order under section 3(1) of the (hereinafter referred to as COFEPOSAA) in the name of Governor, the Under Secretary to Government, respondent 2, directed that it was necessary to detain the detenu with a view to preventing him from engaging in transporting smuggled goods. On the same day by another order issued under section S of the COFEPOSAA the 2nd respondent directed that the detenu shall be detained in the Ahmedabad Central Prison. A declaration under section 12A, sub section (2) was also passed on the same day by the 2nd respondent stating that it was necessary to detain the detenu for dealing effectively with emergency. In pursuance of the above orders the detenu has been detained in the Ahmedabad Central prison after he surrendered on 4th July, 1977. The grounds of detention were supplied to him on 6th July, 1977. On 2nd August, 1977 a declaration under section 9 of the COFEPOSAA was passed by the 4th respondent stating that he was satisfied that the detenu is likely to I) engage in transporting smuggled goods in the areas around Balashwar and Sachin Gabheni Road in the State of Gujarat which are areas highly vulnerable to smuggling as defined in section 9 of the COFEPOSAA. The High Court negatived all the contentions raised on behalf of the detenu and held that the order of detention was validly made. Mr. Ram Jethmalani, the learned counsel for the appellant, raised various contentions. The first contention raised by him is that the order passed under section 9 by the 4th respondent is bad because on the face of it, it discloses that the satisfaction arrived at by him is mechanical and Without application of his mind. As the detention is continued beyond the period of one year only by virtue of the order made under section 9 the detenu is entitled to be set at liberty if the order is found to be invalid. On hearing the learned counsel for the appellant and Mr. Phadke on behalf of the State, we are satisfied that the contention on behalf of the detenu has to be accepted. Before dealing with this point we would just mention the other grounds raised by the learned counsel for the appellant. It was submitted that the order passed under section 3 is invalid as the authority did not apply its mind. The. detenu was released on 19th December, 1974 and from that date till 7th February, 1977 when the order of detention was passed nothing has been disclosed to implicate the detenu in any fresh activity. As the order was based on the activities of the detenu in 1973 and 1974 before the detenu was released, the order of detention cannot be sustained. It was next submitted that 260 the detenu was not furnished important material which must have influenced the detaining authority. Lastly, it was submitted that the grounds given are vague and even after a careful reading of the grounds, it is not clear as to whether the grounds referred to the incidents that took place in 1973 and 1974 only refer to activities subsequent to his release in December, 1974. As we are upholding the challenge of the learned counsel for the appellant on the validity of the order passed under section 9(1) of the COFEPOSAA we refrain from dealing with any of the other contentions. The order dated 2nd August, 1977 passed by B. B. Gujral, Addl. Secretary to the Government of India, the 4th respondent under section 9(1) of th COFEPOSAA is marked as Annexure E '. It runs as follows : "Whereas Virendra Ramniklal Kapadia @ Kumar has been detained on 4th July, 1977 in pursuance of order No. SB. IV/PSA,2876.87(i) dated the 7th February, 1977 of the Government of Gujarat with a view to preventing him from engaging in transporting smuggled goods. AND WHEREAS I, the undersigned, specially empowered in this behalf by the Central Government, have carefully considered the material bearing on the matter in my possession; NOW, THEREFORE, I, the undersigned, specially empowered by the Central Government, hereby declare that I am satisfied that the aforesaid Virendra Ramniklal Kapadia @ Kumar engages and is likely to engage in transporting smuggled goods in the areas around Baleshwar and Sachin Gabheni Road in the State of Gujarat, which are areas highly vulnerable to smuggling as defined in explanation to section 9(1) of the . " In paragraph 3 respondent 4 declared that he is satisfied that the detenu engages and is likely to engage in transporting smuggled goods in vulnerable areas as defined in explanation section 9 (1) of the COFEPOSAA. It was submitted that there is no material on record on which the 4th respondent could have been satisfied that the detenu "engages and is likely to engage in transporting smuggled goods". The impugned order refers to the order of detention dated 7th February, 1977 of the Government of Gujarat. The order of 7th February, 1977 refers to the consideration of the Government of Gujarat as to whether the detention is necessary for dealing effectively with the emergency referred to in sub 261 section (2) of section 12 A of the Act and states that on a consideration A of the materials the Government of Gujarat was satisfied on the basis of information and material in its possession that it was necessary to detain the said person for dealing effectively with the said emergency. In exercise of its powers under sub section (2) of section 12 A the Government declared that it is necessary to detain the detenu for dealing effectively with the said emergency. On the same date the grounds on which the detention was ordered were sent to the detenu through the Superintendent of the Jail. The ground that is alleged against the detenu in paragraph 1 of the order is as follows: "1. As per the intelligence gathered by the Customs officers, you were an associate of a notorious smuggler Mohmed Kutchi of Surat; that you were engaged in piloting smuggled goods loaded in trucks from the place of landing to the place of storage." (underlying ours). To incidents are given: one relating to an incident on 6th August, 1974 and the other to an incident on 25 August, 1974. It is further stated that the Customs, officers contacted one Karltilal Amratlal Thakkar, who was working as accountant of Mohmed Kutchi. Kantilal Amratlal Thakkar in his statement on 7th November, 1976 stated that the detenu was under the employment of the aforesaid Mohmed Kutchi and was getting a salary of Rs. 5,000 p.m. for ar ranging landing of contraband goods. Kantilal further disclosed that in the year 1973 the detenu had accompanied one Mohmed Bilal with foreign currency. Reference is also made to the statements recorded from one Mohmed Bilal Haji Usmangani on 8th Novemher, 1976 and 9th Novemher, 1976 before the Customs officers wherein it was stated that the detenu was one of the trusted men of the aforesaid Mohmed Kutchi and always remained with him and used to he1p Mohmed Kutchi in managing his smuggling activities. The statement also referred to the detenu helping his uncle Vinod Sakarlal Kapadia in delivery of smuggled fabrics. The statement of one Ramchandra Schedeva Rajbher is also referred to. According to the statement dated 11th october, 1976 it was stated that the detenu remained present along with one Umer Ibrahim Billimoria and his gang at Kadodra/kamraj near poultry farm where trucks loaded with camouflaged consignments were being fed with smuggled cargo. A reading of these grounds makes it clear that the incidents referred to relate to the years l973 and 1974 and that due to examination of three persons Kantilal Amratlal Thakkar, Mohmed Bilal Haji Usmangani and Ramchandra Sahadeva Rajbher, fuller particulars regarding the activities of the 262 detenu came to be known prima facie it appears that the information which the Customs authorities received related to the activities of the detenu in 1973 and 1974. Mr. Phadke, the learned counsel appearing on behalf of the State, submitted that the statement shows that the activities of the detenu after 1974 were also included in the grounds furnished for detention. In order to satisfy ourselves as to whether the statements related to incidents after 1974, we perused the statements made by all the three persons referred to. .It is very clear that the statements do not relate to any incidents after 1974 but only to the activities of the detenu in 1973 and 1974. In the affidavit filed by the 4th respondent" Additional Secretary to the Government of India, it is stated in paragraph 5 of his affidavit that he considered the detention order, grounds of detention relating to the detenu as well as the report in respect of the detention order by the State Government under section 3(3) and was personally satisfied that the detenu Virendra Ramniklal Kapadia @ Kumar engages and is likely to engage in transporting smuggled goods* Mr. P. M. Shah Under Secretary to the Government of Gujarat, in paragraph 10 of his affidavit stated that "fresh material showing the involvement of the detenu in the activity of transporting smuggled goods was collected by the Customs authorities and therefore it was open to the State Government to pass a fresh order of detention. Further, he stated "As pointed out in the grounds material indicating the involvement of the detenu in the incidents of 6.8.74 and 25 8 74 and his close association with Shri Mohmed Kutchi,* a notorious smuggler, came to be known in october, November and December, 1976 x x x x I say that the material on the basis of which the detenu was earlier detained was scanty and no new material indicating involvement of the detenu as alleged against him came to the light till october, 1976". The case for the State. appears to be that they regarded the material on the basis of which the detenu was earlier detained was scanty and fuller particulars came to light in october, 1976 indicating involvement of the detenu in the incidents of 6th August, 1974 and 25th August, 1974. This would indicate that for the fresh order of detention the basis was availability of fuller details regarding clients on which the earlier detention was ordered. It is seen that the High Court also proceeded on the basis that further information obtained in october, November 1976 related to the incidents in the years 1973 and 1974. The High Court observed, "It is no doubt true that some of the, activities attributed to the detenu were of August, 1974. However, the ground that the detenu was in regular employment of one Mohmed Kutchi, who is a notorious smuggler and who is also under detention, *Emphasis Sppluied 263 and which fact has been disclosed from the statement of one Kantilal Amratlal Thakkar recorded on November 7, 1976, clearly indicates the connection of the detenu with the said notorious smuggler. The other statements, which have brought home the involvement of the detenu with the aforesaid Mohmed Kutchi and which also attribute the prejudicial activity to the detenu, were recorded somewhere in october and November, 1976. " We are unable to read the above passage as meaning that reliance was placed on fresh incidents relating to the detenu after December. The detenu was detained on 22nd September, 1974 and was released on 9th December, 1974. Further information about the activities of the detenu during the period 1974 obviously before his arrest on 22nd September, 1974 came to light in october and November, 1976. But it is seen that the fresh order of detention under the COFEPOSAA was not passed till 7th February, 1977. If the authorities were in possession of any activities of the detenu after his release on 9th December, 1974 action would have been taken. It is only the statements that were recorded in October and November 1976 which led the authorities to pass the fresh order of detention on 7th February, 1977. We have seen from the statements recorded in october and November, 1976 that no incident that took place after 1974 has been referred to. The High Court observed that it cannot be urged that reasonable nexus between the prejudicial activity and the purpose of detention has been snapped by the time lag rendering the impugned order of detention as one Without genuine satisfaction of the detaining authority. Whether the time lag between August, 1974 and February, 1977 is enough to snap the reasonable nexus between the prejudicial activity and the purpose of detention would depend upon the facts of the case. It may be that a person in the position of a detenu who was a driver of a well known smuggler on a pay of Rs. 5,000 p.m. and who was taking part in clearing the smuggled goods may satisfy the authority that he is likely to continue in his activities in the future and as such would justify his detention. In Gore vs State of West Bengal(1) this Court after referring to the earlier decisions held that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. The : question is whether the past activities of the detenu are such that the . detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities. If the detaining authority in this case had came to the conclusion taking into account the past (1) ; 264 activities of the detenu that he is likely to continue to indulge in such activities in future there would be no justification for this Court to interfere. It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their unlawful activities. In this case, the 4th respondent who passed an order under section 9(1) has not stated that he is satisfied that the detenu is likely to engage in transporting all smuggled goods. What he has stated is that the detenu "engages and is likely to engage in transporting smuggled goods '. There was no material before the 4th respondent for coming to the conclusion that the detenu "engages" in transporting smuggled goods. To this extent we have to accept the contention of the learned counsel for the appellant that there is no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities. The detenu has been under detention from 4th July, 1977 and the period of detention permissible under section 3 is only one year. Section 9(1) enables the authority to make a declaration which would have the effect of extending the period of detention to two years from the date of detention by virtue of amendment to section 10 by Amending Act 20 of 1976. As we have found that the order under section 9(1) has not been validly made and as the detenu has been in detention for more than one year his continuance in detention is not sustainable. In the circumstances, we allow the petition. P.B. R. Appeal allowed.

The appellant was detained under the in September, 1974 but was released in December, 1974. In February, 1977 he was detained under section 3(1) of the , on the ground that he was "likely to engage in transporting smuggled goods". One of the grounds of .detention stated: "you were an associate of a notorious smuggler, that you were engaged in piloting smuggled goods loaded in trucks from the place of landing . " In support of the above, two instances were mentioned: one relating to an incident on 6th August, 1974 and another on 25th August, 1974. In the appellant 's writ petition the High Court observed (1) that although some of the activities attributed to the detenu related to August 1974, the fact that the detenu was in illegal employment of a notorious smuggler under detention clearly indicated that there was connection between him and the smuggler and (2) that a reasonable nexus between the prejudicial activities and the purpose of detention could not be said to have been snapped by the time lag rendering the impugned order of detention as one without genuine satisfaction of the detaining authoritY. In appeal to this Court it was contended on behalf of the appellant that the order of detention was bad, in that it disclosed that the satisfaction arrived at by the detaining authority was mechanical and without application of his mind. Allowing the appeal, ^ HELD: (1) It is clear from the record that the instances alleged do not relate to any incident after 1974 but only relate to the activities of the detenu in 1973 and 1974. Even though information about the activities of the detenu during the year 1974 came to light in october and November, 1976, a fresh order of detention under the Act was not passed till February, 1977. If the authorities were in possession of any activities of the detenu after his release in December, 1974 action would have been taken. it is only the statements that .were recorded in october and November 1976 which led the authorities to pass a fresh order of detention in February, 1977. From the statements recorded in october and November, 1976 no incidents are shown to have taken place after 1974. [262B; 263C D] 258 (2) Whether the time lag between August 1974 and February 1977 is enough to snap the reasonable nexus between the prejudicial activities and the purpose of detention would depend upon the facts of the case. If the detaining authority had come to the conclusion, taking into account the past activities of the detenu, that he was likely to continue to indulge in his unlawful activities in future there would be no justification for this Court to interfere. It is quite likely that persons who are totally involved in such activities as smuggling can cause a reasonable apprehension in the mind of the detaining authority that they are likely to continue in their unlawful activities. But in the instant case the detaining authority passing the order has not stated that he was satisfied that the detenu was likely to engage in transporting smuggled goods. What he has stated was that the detenu "engages" or is "likely to engage" in transporting smuggled goods. There was no material before the detaining authority for coming to the conclusion that the detenu was "engaging" himself in unlawful activities. [263F; 264A C]

Civil Appeal No. 2104 of 1980. Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Himachal Pradesh High Court at Simla in C.W.P. No. 2 of 1980. WITH CIVIL APPEAL No. 2384 OF 1980 Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Himachal Pradesh High Court at Simla in C.W.P. No. 288 of 1979. T.U. Mehta, S.K. Sabharwal. A. P. Mohanty and C.P. Pandey for the Appellant In C. A. No. 2104/80 & for Respondent 2 in C.A. No. 2384 of 1980. G.L. Songhi, Vineet Kumar and Ashok Kaul for the Appellant in C.A. No. 2384 of 1980. M.M. Abdul Khader and Miss A. Subhashini for the Respondent: State V.M. Tarkunde and C.M. Nayar for Respondent No. 5 in C.A. No. 2104 of 1980. The Judgment of the Court was delivered by VARADARAJAN, J. These appeals by special leave are against the common judgment of a Division Bench of the Himachal Pradesh High Court rendered in Writ Petitions Nos. 2 of 1980 and 288 of 1979. They were heard together by us in view of this Court 's order dated 6.11.1980. Writ Petition No. 288 of 1979 was filed by Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur against the State of Himachal Pradesh, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. K. Pandeya. Writ Petition No. 2 of 1980 was filed by Dr. R.M. Bali against the State of Himachal Pradesh and eight others including Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur, Dr. S.P. Kapoor and Dr. K. Pandeya, who were respondents Nos. 8, 9, 6 and 7 respectively in the Writ Petition. Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980 is the second respondent in Writ Petition No. 288 of 1979 and 6th respondent in W.P. No. 2 of 1980. Dr. Jiwan Lal, 1048 the appellant in C.A. No. 2384 of 1980 is the first petitioner in W.P. No. 288 of 1979 and 8th respondent in W. P. No. 2 of 1980. Writ Petition No. 288 of 1979 challenged the reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the petitioners therein, from the post of Deputy Directors of Health Services, as illegal and violative of the conditions of service as also the provisions of the Constitution of India. In Writ Petition No. 2 of 1980 Dr. R.M. Bali prayed for quashing the seniority of specialists indicated in the office Memo dated 2.11.1979 and Annexure PX 1 containing the list and for assignment of Serial No. 1 in the seniority list to him. Dr. R.M. Bali prayed for certain other reliefs also including declaration of the appointment of Dr. S.P. Kapoor as Director of Health Services as null and void and for his case being considered for appointment to that post on the basis of the seniority prayed for in his Writ Petition. The case of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the Writ Petitioners in W.P. No. 288 of 1979, was that they were appointed as Deputy Directors of Health Services on a regular basis. The post of Deputy Director, Health Services was held by Dr. Jiwan Lal for 4.5 years and by Dr. (Mrs.) Damyanti Kapur for about 31 years. The appointment of Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980 and Dr. R.M. Bali and Dr. K. Pandeya (respondents 2 and 4 in W.P. No. 288 of 1979) as Deputy Directors of Health Services, is contrary to the provisions of the Himachal Pradesh Health Services Rules, 1974 (hereinafter referred to as the 'Rules '). They were appointed in disregard of the rights of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur. The Departmental Promotion Committee constituted for making the appointment was not properly constituted as one of the members of the Committee, namely, the Principal Secretary to the then Chief Minister was unauthorisedly inducted into the Committee in the place of the Secretary to Government, Health and Family Welfare Department, Himachal Pradesh. Therefore, the proceedings of the Committee are vitiated. The annual confidential reports of the petitioners Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer who was not only junior to them but also an aspirant for promotion to the higher post along with them. There fore, those confidential reports should not have been taken into consideration for further promotion by the Departmental Promotion Committee. The appointment of Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980, Dr. R.M. Bali and Dr. K. Pandeya, res 1049 pondents 2 and 4 in that Writ Petition was made in haste on 3.11.1979 immediately after the final seniority list was issued on 2.11.1979. 'the appointment of Dr. S.P. Kapoor, the second respondent in W.P. No. 288 of 1979 and appellant in C.A. No. "104 of 1980 as Director of Health Services on the same day is illegal as he did not satisfy the conditions prescribed in the Rules and he did not have even the requisite qualifying service. Further the post of Director of Health Services must have been filled up from amongst the Health Services Grade I officers and not from amongst Specialists. The reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur from the posts of Deputy Directors is illegal and violative of the conditions of their service as also the provisions of the Constitution of India. The case of Dr. R.M. Bali, the petitioner in W.P. No. 2 of 1980 was that he was appointed as T.B. Officer, T.B. Sanatorium, Mandodhar, a Gazetted Class 11 post, with effect from 9.4.1955 and he continued to work as such till 28.5.1962. He was, thereafter, appointed as Superintendent in that Sanatorium, a Class I post, and after joining the post he was selected for appointment on a regular basis through the Public Service Commission and he was confirmed in that post, categorized as Category 'D ' post and Class I post in the Central Health Services, in 1966. The Medical and Health Department of Himachal Pradesh Government appointed him as Director of Health (T.B.), a Category 'D ' post by a Notification dated 1.7.1963. He was inducted into the Central Health Services with effect from 9.9.1966 and included in the initial constitution of that Service and confirmed in that Service on 9.9.1968. But Dr. Grover, who has since retired, and Dr. S.P. Kapoor, who were respondents 5 and 6 respectively in Writ Petition No. 2 of 1980, were appointed merely on a temporary basis to the Central Health Service with effect from 1.11.1966. The inter se seniority of Dr. R.M. Bali, the petitioner in W. P No. 2 of 1980 and Dr. Grover and S.P. Kapoor in the Central Health Services (Specialists ' Grade) had to be preserved and could not be disturbed at the time of absorption in the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and the protection given to the members of the Punjab Service. In these circumstances, Dr. R.M. Bali prayed for quashing of the seniority list of the cadre of Specialists indicated in the office Memorandum dated 2.11.1979 (Annexure PX 1 containing in the list) and assigning to him Serial No. 1 in the seniority list. He also prayed for other reliefs including declaration of the appointment of Dr. S.P. Kapoor as Director of Health Services as null and 1050 void and for his appointment to that post on the basis of the revised seniority claimed by him. The contention of the Himachal Pradesh Government, the first respondent in W.P. No. 288 of ]979 was that Dr. Jiwan Lal and Dr. (Mrs) Damyanti Kapoor were appointed as Deputy Directors of Health Services on ad hoc basis. The Deputy Director 's post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop gap arrangement. The incumbent to the post of Secretary to Government, Health and Family welfare was on leave from the 3rd to 9th November, 1979 and the Principal Secretary to the then Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee by order dated 3 11.1979. The constitution of the Departmental Promotion Committee was, therefore, perfectly valid. The annual confidential reports written by Dr. Grover, who was working on ad hoc basis, were not the only reports taken into account by the Departmental Promotion Committee. That Committee did not take into account the reports of Dr. J. C. Sharma about the work and conduct of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur. The post of Director of Health Services was manned on an ad hoc basis since the retirement of Dr. Krishan Swarup in December 1973. The posts of Deputy Director also were manned on an ad hoc basis. These ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2.11.1979 and since that impediment was over on 2.11.1979 the Departmental Promotion Committee on 3.11.1979 and orders of appointment to those selected by that Committee on that date were issued on the same day. The promptness in making the regular appointments was necessitated by the intention to make the regular appointment as quickly as possible after the preparation of the final seniority list on 2.11.1979. Specialists are necessarily officers possessing post graduate qualifications while G.D.O., Class I are, as a rule, only graduates. Therefore, the Rule making authority divided the higher posts equally amongst the Officers of the two categories taking all factors into consideration. The appointment of Dr. section P. Kapoor, the second respondent in W.P. No. 288 of 1979 as Director of Health Services is valid Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were not Deputy Directors of Health Services on the date of selection of Dr. S.P. Kapoor as Director of Health Services and, therefore, their claim for being considered for promotion to that post is wholly untenable having regard to Rule 9(3) of the Rules, according to 1051 which only Deputy Directors could be considered for promotion to the post of Director of Health Services. The contention of the Himachal Pradesh Government, the first respondent in W.P. 2 of 1980 was that the post of Superintendent, T.B. Sanatorium held by Dr. R.M. Bali, the petitioner in that Petition, was a junior Class I post until he was appointed to the Specialist grade of the Central Health Services with effect from 9.9.1966. Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 respectively in W.P. No. 2 of 1980 were appointed to the Specialists ' grade in the Central Health Services with effect from 1.11.1966 though the Central Government kept the question of seniority open. Dr. R.M. Bali exercised his option to join the Himachal Pradesh Health Service after a copy of the Rules was supplied to him. The final seniority of Dr. R.M. Bali and others was fixed under the provisions of the Rule issued on 10.1.1974. Seniority assigned to Dr. R.M. Bali is strictly in accordance with the provisions of Rule 10 (a) (iii) of the Rules. The words "whichever is earlier" which occurred in the original Rule 10 (a)(i) and 10 (a)(iii) were deleted by the Amendment Rules, 1966. The claim of Dr. R.M. Bali for seniority on the basis of his ad hoc appointment is not tenable. The Central Government and Dr. S.P. Kapoor, respondents 2 and 6 in W.P. No. 2 of 1980 had also filed counter affidavits opposing the Writ Petition. In the Central Government 's counter affidavit it is stated that Dr. R.M. Bali has been in the Specialist 's grade only from 9.9 1966 and that Dr. Grover and Dr. S.P. Kapoor were appointed to the Specialists ' grade on 1.11.1966 leaving the question of seniority open. In the counter affidavit of Dr. S.P. Kapoor reference is made to Government of India 's letter dated 9.7.1971 which deals with the fixation of seniority of medical officers of the Punjab Government absorbed in the Central Health Services in the Himachal Pradesh Union Territory and states as follows. ; "The Central Health Services was constituted with effect from 9.9.1966 and the seniority of Medical officers appointed to the Service with effect from that date has been determined in accordance with the principles laid down in this Ministry 's letter dated 27.7.1967. In accordance with sub para 1 of this memoranda officers appointed to a grade of the Central Health Services under Rule 7A of the Central H Health Services Rules, as amended by the Central Health Services Amendment Rules, 1966, will rank en bloc senior 1052 in that grade under Rule 8 of the Central Health Services Rules, 1963. The Officers of the Punjab Government were appointed to the Central Health Services with effect from 1.11.1966 under Rule 8(A) of the Central Health Services Rules, 1963. Those officers have come to the Central Health Service only after the initial constitution of that Service was over. In accordance with the principles laid down for the Central Health Services it is not permissible to assign them seniority in the Central Health Services over the officers appointed to the Central Health Services at the initial constitution of the Service. However, as the Government of Himachal Pradesh have proposed to formulate their own Health Services and the Medical officers who opt from the Central Health Services are to be included in that Service, those officers may be asked to exercise their option. In case they chose to remain as members of the Central Health Services their seniority will be reckoned only at the maintenance stage of the Central Health Services and they cannot get seniority in the Central Health Service on the basis of their prior service under the Punjab Government. Those Officers who opt to join the proposed Himachal Pradesh Health Service may, however, be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service. At the time of formation of that Service these persons can be considered for inclusion in the initial constitution of that Service and their seniority fixed bearing in mind the principles mentioned in Shri A.D. Pande 's D.O. Letter No. 22/5167 SR(S) dated 14th February, 1967". The learned Judges of the Himachal Pradesh High Court who heard these two Writ Petitions and other Writ Petitions jointly found that Dr. Jiwan Lal, Dr. S.P. Kapoor and Dr. (Mrs.) Damyanti Kapur were appointed as Deputy Directors of Health Services on ad hoc basis in July 1975 and January 1976 respectively after the Rules came into force on 19.1.1974, that it has not been contended by them that they had been appointed in accordance with the Rules or after relation of the Rules, that Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur and Dr. S.P. Kapoor were specifically appointed 1053 on ad hoc basis and that, therefore, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur cannot claim right to the post of Deputy Directors of Health Services or to seniority on the basis of their ad hoc appointments, though they can add the period of such appointment in the matter of experience for promotion and confirmation in view of the addition of notice to Rule 9 of the Rules. Regarding the attack on the constitution of the Departmental Promotion Committee, the learned Judges found that when the regular Secretary to the Government, Health and Family Welfare Department, was on leave, the Principal Secretary to the then Chief Minister was appointed to function additionally as Secretary to Government, Health and Family Welfare Department, as per office order dated 2.11.1979 and, therefore, the Departmental Promotion Committee has been properly constituted. Regarding the question whether seniority in the Himachal Pradesh Health Service is to be determined with reference to the date of joining the Central Health Service or with reference to the date of joining the Punjab Civil Medical Service, Grade I [in short PCMS (1)] with Post Graduate qualifications on the date of appointment as Deputy Medical Superintendent / Resident Medical Officer /Surgical Specialists, Ripon Hospital from the date on which they were given the PCMS scale, the learned Judges of the High Court found that the Central Health Service was constituted by the Central Government and the Health Service Rules, hereinafter referred to as the "Central Rules", framed by the President of India, in exercise of the powers conferred by Article 309 of the Constitution of India, came into force with effect from 15.5.1963 and that the Central Rules were amended by the Central Health Services (Amendment) Rules, 1966. Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades, Grade I and Grade Il. After the Punjab Reorganisation Act came into force, and the Central Health Service was formed, some persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that into that Service after they had exercised their option to be inducted therein. The Writ Petitioners and contesting employees respondents had been inducted into the Central Health Service after they had exercised their option. When the Himachal Pradesh Union Territory was in existence, its Health Department was manned by officers of the Central Health Service, But after Himachal Pradesh became a full fledged State, the Himachal Health Service was constituted on 24.1.1974 under the Himachal Pradesh Health Service Rules, which 1054 came into force on 19.1.74 and the members of the Central Health Service serving in the erstwhile Himachal Pradesh Union Territory were asked to exercise their option to continue in the new Himachal Pradesh Health Service. The writ petitioners and the contesting employees respondents exercised their option to continue in the Himachal Pradesh Health Service. The question for consideration was the basis on which seniority in the Himachal Pradesh Health Service is to be determined, namely, whether it is with reference to the date of entry into the Central Health Service or into the PCMS (I) with post graduate qualifications or the date of appointment as Deputy Medical Officer /Surgical Specialists, Ripon Hospital from the date on which they were given PCMS scales According to Rule 4 of the Himachal Pradesh Health Service Rules, which relates to classification, categories and scales of pay, there are two wings in the Himachal Pradesh Health Service, namely, the General Wing and the Teaching Wing, which are independent and not inter changeable except in regard to certain posts. The writ petitions had nothing to do with any of the officers in the Teaching Wing. The General Wing has six categories, each having grades as specified in the table annexed to the Rules. We are concerned in these appeals with Specialists and Grade I officers. The officers who were concerned with the writ petitions were Specialists on the one hand and Himachal Pradesh Health Service Grade I officers on the other in respect of whom seniority is to be fixed on a separate basis. Under the Himachal Pradesh Health Service Rule 10 relating to fixation of seniority, inter se seniority of departmental candidates absorbed under Rule 7 and 8 shall be determined under Rule 10 (a) (ii) as regards (i) Himachal Pradesh Health Service Grade I officers. from the date of regular appointment having been duly selected by the Union Public Service, Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the grades of (i) PCMS (I) and (ii) G.D.O. Grade I, and under Rule 10 (a) (iii) as regards (ii) Specialists from the date of regular appointment having been selected by the Union Public Service Commission, Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee in the following grades, namely (i) Specialists (Central Health Service), (ii) PCMS (I) with post graduate qualifications and (iii) Deputy Medical Superintendent/ Resident Medi 1055 cal Officer/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS (I) was given to them. It was admitted that as alleged in W.P. No. 2 of 1980, Dr. R.M. Bali was inducted into the Central Health Service on a regular basis only on 9.9.1966 and Dr. Grover and Dr. S.P. Kapoor, respondents 5 and 6 in that Writ Petition, were inducted into the Central Health Service only with effect from 1.11.1966 and, therefore, Dr. R.M. Bali was senior to Dr. Grover and Dr. section P. Kapoor in the Central Service. Dr. R. M. Bali and Dr. section P. Kapoor were both specialists. section P. Kapoor contended before the High Court that he had been selected by the Punjab Service Commission on 29.1.1965 and had post graduate qualifications when he was inducted into the Central Health Service. But Dr. R.M. Bali contended that he was entitled to seniority from 1.6.1962 when he was appointed as T.B. Specialist at Mandodhar on an ad hoc basis or at least from 31.3.1964 when he was regularly appointed after selection by the Union Public Service Commission. In Rule 10 (a) (iii) the words "whichever is earlier" which were originally found have been deleted retrospectively by an amendment as stated earlier. The learned Judges of the High Court held that seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service if any, in the PCMS though they have observed that the words "whichever is earlier" which occurred in the Himachal Pradesh Health Service Rule 10 (a) (iii) were omitted retrospectively in order to do justice in the matter of seniority to those doctors who came into the Himachal Pradesh Health Service from any local authority or PCMS and not from the Central Health Service. They have fixed the seniority of Dr. R.M. Bali above Dr. S.P. Kapoor on the basis that the former was inducted on 9.9.1966 and the latter was inducted on 1.11.1966 into the Central Health Service and held that Dr. D.S. Chauhan 's seniority is rightly reflected in the Specialists. grade, and they directed modification of the seniority of Doctors in the Specialists ' grade in accordance with their decision, namely, on the basis of date of induction into the Central Health Service. Regarding writing of the annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the contention of the Himachal Pradesh Government in W.P. No. 2 of 1980 was that Dr. Sharma 's reports were not taken into consideration, that Dr. Grover 's reports were revised, sometimes with additional remarks in favour or against H the incumbents, by the higher authorities and that his reports were not the only reports which were taken into consideration by the 1056 Departmental Promotion Committee in November 1979. The learned Judges of the High Court accepted that contention of the first respondent and held that no prejudice has been caused to the writ petitioners while the annual confidential reports were considered by the Departmental Promotion Committee on 3.11.1979. They quashed the seniority list of Specialists prepared on 2.11.1979 as well as the notification dated 3.11.1979 appointing Dr. S.P. Kapoor, the appellant in C.A. No. 2104 of 1980, Dr. K. Pandeya and Dr. R.M. Bali as Deputy Directors (super time Grade II General) and Dr. S.P. Kapoor as Director. Health Services (Super time Grade I General) and directed the State Government to make the appointments to these posts on the basis of the modified seniority list to be prepared in accordance with the directions given in their judgment. They disposed of Writ Petitions Nos. 288 of 1979 and 2 of 1980 as indicated above and directed the parties to bear their respective costs. The Himachal Pradesh Union Territory was constituted on 1.11.1966. On and from the appointed day, which in the present case is 1.11.1966, Simla, Kangra, Kulu and Lahaul and Spiti districts and certain other areas in the original State of Punjab became parts of that Union Territory under section 5 of the Punjab Reorganisation Act (Central Act) 1966. The Central Rules, 1963 came into force on the appointed day and were later amended by the Central Health Service (Amendment) Rules 1966. These Rules, as amended, are found on pages 336 to 346 of the paper book in C.A. No. 2104 of 1980. The Central Health Service was constituted only with effect from 9.9.1966. This is clear from the letter dated 9.7.1971 from the Ministry of Health and Family Planning (Department of Health) Government of India, addressed to the Secretary to Government (Medical and Health Department), Himachal Pradesh to which detailed reference will be made later in the course of this judgment. Dr. R.M. Bali was regularly appointed in the specialist 's grade of the Central Health Service on probation with effect from 9.9.1966 alongwith certain others, pursuant to the power conferred by Rule 7A(I) of the Central Rules, as amended in 1966, by the President 's order No. 1 3/67 CHS II dated 8.6.1967. At that time Dr. R.M. Bali was working as a Specialist in the T.B. Sanatorium, Mandhodhar, Himachal Pradesh Union Territory, a category 'D ' post, having been appointed on the recommendation of the Union Public Service Commission. According to the counter affidavit filed on behalf of the Himachal Pradesh Government in W.P. No. 2 of 1980, the post of 1057 Superintendent, T.B. Sanatorium, Mandodhar was a Junior Class I post at that time. It has been up graded subsequently. Dr. Jiwan Lal was appointed substantively on 21.12.1946 as Assistant Surgeon (Grade I) and had been promoted as the Chief Medical officer in the Civil Surgeon 's grade on 1.7.1958. According to paragraph 3 of the counter affidavit filed by Dr. Jiwan Lal in S.L.P. (Civil) No. 6574 of 1980, he was appointed under rule 7A(I) (b) of the Central Rules, as amended in 1966, to a post in the category of G.D.O., Grade I on 9.9.1966 before the constitution of Himachal Pradesh Union Territory and was confirmed in the post on 9.9.1968 after the constitution of that State. Dr. R.M. Bali and Dr. Jiwan Lal were allotted to Himachal Pradesh Union Territory on its constitution. On the recommendation of the Punjab Public Service Commission, Dr. S.P. Kapoor was appointed by the Governor of Punjab as officiating Senior Medical officer against the up graded post of PCMS (Class I) by Memo No. 177 4 MBI 65 dated 7.1.1965 with a direction to join the new assignment within a fortnight, which he did on 29.1.1965, and he was put on probation for a period of two years with effect from the date of taking charge of the post. After joining the post 13 as per that order, Dr. S.P. Kapoor was serving at a station which was in the territory of the former Punjab State prior to the date of its organisation, which later became part of the Himachal Pradesh Union Territory under section S of the as mentioned above. During the period of his probation he had to come into the Central Health Service on the constitution of Himachal Pradesh Union Territory on 1.11.1966 as he was allotted to that State and had been selected by the Union Public Service Commission in the same manner as Dr. R.M. Bali had been selected. Thus, all the three individuals, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. S.P. Kapoor came to be in the Central Health Service on the constitution of Himachal Pradesh Union Territory on 1.11.1966. Dr. S.P. Kapoor was appointed to Specialists ' Grade in the Central Health Service along with Dr. Grover and two others under Rule 8A of the Central Rules as amended in 1966 by the President 's Order No. F.32/48/65 CHS II (V. Il) dated 26.8 1970 with effect from 1.11.1966. Dr. R.M. Bali was appointed along with another to the Specialists ' Grade in the Central Health Service with effect from 9.9.1968 by the President 's order No. F. 32 1(6)/70 CHS III dated 27.1.1971. The full fledged Himachal Pradesh State was formed under Section 3 of the State of Himachal Pradesh Act 53 of 1970, a Cen 1058 tral enactment, on and from the appointed day, 25.1.1971, and it comprised the Himachal Pradesh Union Territory. The Rules (Himachal Pradesh Health Service Rules) came into force on 19.1.1974. Consequent on the exercise of option for being absorbed in the Himachal Pradesh Health Service on the terms and conditions stipulated in the Rules and keeping in view the recommendations of the Screening Committee appointed under Rule 7 of those Rules, the Governor of Himachal Pradesh appointed Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan as Specialists on the General Side and Dr. K. Pandeya, Dr. Jiwan Lal, Dr. Jyoti Prasad and Dr. (Mrs.) Damyanti Kapur as Himachal Pradesh Grade I Officers with effect from 24 .1.1974 by his order No. 1 15/75 H&FP dated 9.6.1975 in the categories to which they had been appointed prior to the commencement of the Rules as amended. In that order relating to seven Specialists and four Himachal Pradesh Health Grade I Officers, Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan are ranked as Nos. 2, 3, 6 & 7 respectively among Specialists while Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur are ranked later as Nos. 2 and 4 respectively amongst Himachal Pradesh Health Service Grade I officers. This was after the Governor of Himachal Pradesh, in view of the Central Government 's concurrence to the transfer of the officers of the Central Health cadre to the Himachal Pradesh Health Service and on the recommendations of the Screening Committee constituted under Rule 7 of the Rules, appointed nine Doctors as Professors on the Teaching Wing, 19 Doctors as Specialists in the Teaching Wing, 10 Doctors including S.P. Kapoor and Dr. R.M. Bali as Specialists on the General Side and Dr. K. Pandeya and Dr. Jiwan Lal as Himachal Pradesh Health Service Grade I officers by his Order No. 1/15/75 H&FP dated 9.6.1975. As stated earlier, we are not concerned in these appeals with any of the Doctors on the Teaching Wing. In that order dated 9.6.1975 also Dr. Grover, Dr. S.P. Kapoor and Dr. R.M. Bali are ranked as Nos. 2, 3 and 6 respectively amongst the General Side Specialists while Dr. Jiwan Lal is ranked later as No. 2 and below Dr. K. Pandeya amongst the Himachal Pradesh Health Service Grade I officers. Thus it is seen that Dr. S.P. Kapoor and Dr. R.M. Bali are Specialists on the General Side and that Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur l are Himachal Pradesh Health Service Grade I Officers. The Himachal Pradesh Government, by order No. HFW/B (9) 7/78 dated 19.8.1978 confirmed Dr. Grover and Dr. S.P. Kapoor, 1059 who originally belonged to the Punjab Civil Medical Service, with effect from 27.4.1964 and 29.1.1965 respectively and Dr. R.M. Bali who came originally from the Central Health Service with effect from 9.9.1966 and certain others with effect from 24.1.1974, leaving the question of seniority open. Prior to 2.11.1979, Dr. S.P. Kapoor, Dr. K. Pandeya, Dr. R.M. Bali, Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were working as Deputy Directors, Health Services in the Himachal Pradesh Health Service on ad hoc basis and Dr. Grover was working as Director of Health Services on ad hoc basis during 1975 to 1977. Dr. K. Pandeya replaced Dr. Grover as Director of Health Services on ad hoc basis in June 1978 by the Government 's order No. 1 15/74 HP (Apptt) dated 8.6.1978. This fact, mentioned by Mr. Mehta, learned counsel appearing for Dr. S.P. Kapoor in the course of the arguments, was not disputed by Mr. V.M. Tarkunde, learned counsel appearing for Dr. R.M. Bali and Mr. G.L. Sanghi, learned counsel appearing for Dr. Jiwan Lal. On 2.11.1979 the final seniority lists of Specialists and Grade I Officers in the Himachal Pradesh Health Service as on 1.1.1979 were published by the Himachal Pradesh Government 's order No. HPW B(9) 2/77 dated 2.11.1979. In the List relating to eight Specialists, Dr. Grover, Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. D.S. Chauhan are ranked as Nos. 1, 2, 3 and 5 respectively while in the List relating to 79 Grade I Officers, Dr. K. Pandeya, Dr. Jiwan Lal and Dr. (Mrs.).) Damyanti Kapur are ranked as Nos. 1, 2 and 3 respectively. Now, Dr. Grover and Dr. K. Pandeya are stated to have retired. On 3.11.1979, the Departmental Promotion Committee constituted under Rule 2(g) of the Rules, the constitution of which is attacked by Mr. Mehta, Mr. Tarkunde and Mr. Sanghi, recommended on the basis of the said final seniority lists, the appointment of Dr. S.P. Kapoor, Dr. K. Pandeya and Dr. R.M. Bali as Deputy Directors of Health Services and Dr. S.P. Kapoor as Director of Health Services in the place of Dr. K. Pandeya. On the same day, they were appointed as such by the Government 's Order No. Health Kb(9)4/79 dated 3.11.1979. On the same day Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were reverted with immediate effect to Himachal Pradesh Grade I posts by the Governor 's Order No. Health B(9)4/79 and Dr. S.P. Kapoor was promoted as Director of Health Services by the Government 's Notification No. 171002 and put on probation for a period of two years. It is stated in that Notification that orders of posting of Dr. K. Pandeya, presently officiating as Director of Health Services purely on a temporary basis, will be issued by the Secretary (Health and Family Welfare) to the 1060 Government of Himachal Pradesh separately. The correctness of these seniority lists and orders of appointments were challenged in the Writ Petitions. The writing of the annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the constitution of the Departmental Promotion Committee, and the rotation of Specialists in preference to Himachal Pradesh Grade I Officers for appointment as Director of Health Services on the admitted 50 : 50 basis were also questioned in the Writ Petitions. There is no dispute that the basis for selection of the Specialists and Grade I Officers as Director of Health Services is 50 : 50. The learned Judges of the High Court held that seniority has to be determined on the basis of the date of Induction into the Central Health Service and not on the basis of the earlier induction into the Punjab Civil Medical Service though they have observed that the words "whichever is earlier" which occurred originally in Rule 10 (a) (iii) of the Rules were omitted retrospectively in order to do justice in the matter of seniority to these Doctors who came into the Himachal Pradesh Health Service from any local authority or the Punjab Civil Medical Service and not from the Central Health Service. On that basis they have fixed the seniority of Dr. R.M. Bali above Dr. S.P. Kapoor on the ground that the former was inducted on 9.9.1966 and the latter was inducted on 1.11.1966 into the Central Health Service and found that the seniority of Dr. D.S. Chauhan is rightly reflected in the Specialists ' Grade. They have directed modification of the seniority of Doctors in the Specialists Grade in accordance with their judgment; namely, on the basis of the date of induction into the Central Health Service. Regarding writing of the annual confidential reports by Dr. Grover and Dr. J.C. Sharma, the learned Judges of the High Court accepted the contention put forward by the Himachal Pradesh Government in the counter affidavit filed in W.P. No. 2 of 1980 that Dr. Sharma 's reports were not taken into consideration that Dr. Grover 's report were revised, sometimes with additional remarks in favour or against the incumbents by the higher authorities and that his reports were not the only reports that were taken into consideration by the Departmental Promotion Committee in November 1979 and held that no prejudice has been caused to the Writ Petitioners while the annual confidential reports were considered by the Departmental Promotion Committee. The learned Judges have not expressed any view regarding the attack on the Departmental Promotion Committee. On the question of rotation and selection of the Specialist as Director of Health Services in preference to Grade I officers, the learned Judges of the High Court 1061 held that the Rules are silent on the question as to which category should be chosen first and they accepted the contention of the Himachal Pradesh Government that the Government had power under Rule 21 of the Rules to supplement the same by providing for starting the roster with the category of Specialist on the ground that the senior most of the Specialists had on the date of meeting of the Departmental Promotion Committee namely, 3.11.1979, put in greater length of qualifying service than the senior most officer of the Himachal Pradesh Health Service Grade I officers and that the Government, therefore, started the roster rightly with the category of Specialists keeping in view the length of qualifying service in each of grades, namely, Specialists and Himachal Pradesh Service Grade I officers. Mr. Mehta, appearing for Dr. S.P. Kapoor, contended that having regard to Rule 10 (a) (iii) of the Rules and the fact that Dr. S.P. Kapoor had been appointed as PCMS Grade I officer by the Punjab Government on 29.8.1965, long before Dr. R.M. Bali and Dr. Jiwan Lal came into Central Health Service on 9.9.1966 and that Dr. S.P. Kapoor had been appointed as a Specialist in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali had been appointed in the Specialists ' Grade only with effect from 9.9.1968, Dr. S.P. Kapoor is senior to both Dr. R.M. Bali and Dr. Jiwan Lal in the Himachal Pradesh Health Service though he would undoubtedly be junior to Dr. R.M. Bali and Dr. Jiwan Lal in the Central Health Service as he had come to that Service only on 1.11.1966 while those two individuals had come into that Service on 9.9.1966. But Mr. Tarkunde, appearing for Dr. R.M. Bali and Mr. Sanghi, appearing for Dr. Jiwan Lal, contended that the basis of seniority has been rightly determined by the learned Judges of the High Court, and Mr. Sanghi submitted that in the List Dr. Jiwan Lal will come first and that if Dr. R.M. Bali is held to be senior, Dr. Jiwan Lal would rank next to him. Mr. Pande, the then Joint Secretary, Home Affairs, Government of India had stated in his D.O. Letter No. 22/5/67 67 SR (S) dated 14 2 1967 addressed to the Chief Secretary, Himachal Pradesh Government (Union Territory), that the Central Government has already informed the Chief Secretary by letter dated 17.11.1966 that the allocation of the Government servants among the States of Punjab, Haryana and Himachal Pradesh and Chandigarh, which had already been made provisionally under section 82 (b) of the , are to be finalized by the end of February, 1967. 1062 He had requested the Chief Secretary for action for integration of the service being initiated soon after the finalisation of the allocation and had stated that it involves two steps, namely (I) determination of the equivalent posts and (2) determination of the relative seniority of persons holding equivalent posts but drawn from different integrating units. It is also stated in that letter that while determining the relative seniority as mentioned above, it may also be borne in mind that inter se seniority of officers drawn from the same integrated unit should, as far as possible, be maintained. He had further stated in that letter that as the Chief Secretary is aware that Section 82 (4) of the casts responsibility on the Central Government for ensuring fair and equitable treatment to all the officers affected by the provisions of that Act. The Ministry of Health and Family Planning (Department of Health), Government of India wrote, the letter dated 9.7.1971 to the Secretary to the Government, Medical and Health Department Himachal Pradesh regarding fixing of seniority of the Medical officers of the Punjab Government absorbed in the Central Health Service in Himachal Pradesh as in the case of Dr. S.P. Kapoor. Unfortunately, the learned Judges of the High Court have not referred to this letter, which is strongly relied upon by Mr. Mehta, in their judgment. Mr. Tarkunde submitted that this letter was not relied upon before the High Court. That letter can not be ignored. It is stated in that letter thus: "The Central Health Service was constituted with effect from 9.9.1966 and the seniority of the Medical officers appointed to this Service with effect from that date, has been determined in accordance with the principles laid down in this Ministry 's O.M No. 5 (II) /67 CHSI dated 22.7.1967. In accordance with sub para I of this Memorandum, officers appointed to a grade of the Central Health Service under Rule 7A of Central Health Service Rules, 1963 as amended by the Central Health Service (Amendment) Rules, 1966, will rank enbloc senior in that grade to those who may be appointed to that grade under Rule 8A of the Central Health Service Rules, 1963. The officers of the Punjab Government were appointed to the Central Health Service with effect from 1.11.1966 1063 under Rule 8A of the Central Health Service Rules, 1963. As these officers have come into the Central Health Service only after the initial constitution of that service was over, in accordance with the principles laid down for the Central Health Service, it is not permissible to assign them seniority in the Central Health Service over the officers appointed to the Central Health Service at the initial constitution of the Service. However, as the Government of Himachal Pradesh have proposed to form their own Health Service and the Medical officer who are to opt from the Central Health Service are to be included in that Service, these officers may be asked to exercise the option first. In case they choose to remain as members of the Central Health Service, their seniority will be ranked only at the maintenance stage of the Central Health Service and they cannot get seniority in the Central Health Service on the basis of their prior ser vice under the Punjab Government. Those officers who opt to join the proposed Himachal Pradesh Health Service may, however, be given the benefit of their past continuous service while fixing their seniority in the Himachal Pradesh Health Service. At the time of formation of that Service these persons can be considered for inclusion in the initial constitution of that service and their seniority fixed bearing in mind the principles mentioned in Shri A.D. Pande 's D.O. letter No. 2215/67 SR (S) dated 14th February, 1967. " We think that this stand of the Central Government in regard to seniority of officers who came into the Central Health Service at the initial constitution of that Service vis a vis those who came into that service after initial constitution of that service is correct and the only stand that could be reasonably taken in the circumstance of the case. It would not be proper for anyone who came into that Service after it had been constituted, to ask for seniority over those who were in that Service on the date of its initial constitution on the basis of their earlier appointment before they came into the Central Health Service after its initial constitution. Before the Rules were framed there was a meeting of officials on 24.1.1972 to consider the question as to how seniority of officers 1064 who were already in the Central Health Service, having been appoint ed to that Service under Rule 7A of that Central Health Service Rules at the initial constitution of the service and of officers of the erst while Punjab Government who were appointed in the Central Health Service with effect from 1.11.1966 should be fixed. The minutes of that meeting are found at pages 285 to 287 of the paper book relating to C.A. No. 2104 of 1980. It is seen from those minutes that in that meeting Mr. T.V. Menon of the Ministry of Law, Central Government, evidently on the basis of the aforesaid letter dated 9.7.1971 of the Ministry of Home Affairs, Health and Family Planning addressed to Secretary to Government, Himachal Pradesh, stated that: "As the Government of Himachal Pradesh proposes to form a separate Himachal Pradesh Health Service, it is well within the right of the Himachal Pradesh Government to frame Rules and Regulations to govern the service conditions of officers who might be appointed to that Service including their seniority. The only safeguard that should be taken is that these rules and principles of seniority should be circulated among all the officers and their option obtained in writing either to join the Himachal Pradesh Health Service or to remain in the Central Health Service. The Government of Himachal Pradesh need not be bound by the Rules and Regulations governing Central Health Service Scheme in respect of the provisions that might be made in the Himachal Pradesh Health Service. The Government of Himachal Pradesh may lay down any principles that may be acceptable to the officers concerned keeping in view the principles of equity and justice. " Rule 4 of the Rules relates to classification, categories and scales of pay and reads as follows: "4. Classification, categories and scales of pay and reads as follows: (1) The Himachal Pradesh Health Service Carde will consist of the two wings namely the General Wing and the Teaching Wing. These two wings of the service shall 1065 be independent of the each other and posts will not be inter changeable at any stage, except the posts which carry a scale of Rs. 400 1100 or a pay scale lower than that which are included in the service. There shall be six categories in Health Wing; (General) and four categories in Health Wing (Teaching). Each category B shall consist of the grades specified in column 2 of the table below: (2) The scales of pay and classification of such grades shall be specified in corresponding entries in columns 3 & 4 of the said tables. General Sr. Categories Scales of pay Classification Wing No. 1. Super time Grade I 2250 125 2500 Class I including NPA 2. Super time Grade 1800 100 2000 Class I II including NPA 3. Specialists 900 50 1150/50 1300 Class I 4. Himachal Pradesh 900 50 1150/50 1300 Class I Health Service, Grade I. 5. Himachal Pradesh 400 30 700/40 1109 Class II Health Services, Grade II. Amend 6. Dental Surgeon 400 30 700/40 1100 Class II ment Eight II 1066 Note: Two Selection Grade posts one each for Himachal Pradesh Health Services Grade I and specialists shall be in the pay scale of Rs. 1800 100 2000 (inclusive of N.P.A.) Note II: See amendment sixth and eighth (III). Teach 1. Principal/Professors 1300 30 1600 100 1800 Class I ing Wing 2. Specialists Grade Associate Prof./ 900 50 1150/50 1300 Class I Asstt. Professor 3. Asstt. Professor 900 50 1150/50 1350 Class I (Dental). Amend 4. Asstt. Surgeon 450 30 660 EB 40 Class I ment (Dental). 1100 50 1250 Eight VI The special pay attached to various posts is as under: (1) Principal (Medical College) Rs. 100/ PM (2) Assistant Professor Rs. 100/ PM (3) officers appointed as Chief Medical Rs. 100/ PM Officers Rule 10(a) mentions about how seniority of departmental candidates absorbed under Rules 7 and 8 shall be determined and reads as follows: "10. Fixation of Seniority. 1067 (a) The inter se seniority of departmental candidates absorbed under rule 7 and 8 shall de determined as follows: (i) . . . . . . . . . (ii) Himachal Pradesh Health Service Grade I from the date of regular appointment having been duly selected by the Union Public Service Commission, Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee (whichever is earlier) in the following grades: P.C.M.S. I. G.D.O.Gr. I. (iii) Sepecialists From the date of regular appointment having been duly selected by Union Public Service Commission, Punjab Public Service Commission and Himachal Pradesh Public Service Commission and or by a regular Departmental Promotion Committee (whichever is earlier) in the following grades: 1. Specialists (C.H.S.) 2. P.C.M.S.I. (with post graduates qualifications) 3. Deputy Medical Supdt./Resident Medical officers/Surgical Specialists, Ripon Hospital from the date the scale of P.C.M.S.I. was given. " It would appear from Rule 10 (a) (ii) that so far as Himachal Pradesh Health Service Grade I officers are concerned, seniority will have to be reckoned from the date of regular appointment having been duly selected by the Union Public Service Commission and Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades, 1068 namely, PCMS Grade I and GDO Grade I and that so far as Specialists are concerned, their seniority will count from the date of regular appointment having been duly selected by the Union Public Service Commission, Punjab Service Commission. Himachal Pradesh Public Service Commission and or by regular Departmental Promotion Committee in the following grades namely, (1) Specialist (CHS); B(2) PCMSI (with post graduate qualifications) and (3) Deputy Medical Superintendents/Resident Medical officers/Surgical Specialists, Ripon Hospital from the date on which the scale of PCMS (I) was given to them. It has been seen above that Dr. S.P. Kapoor has been appointed to the PCMS (Grade 1) post on 29.1.1905 and he was inducted into the Specialists, grade in the Central Health Service with effect from 1.11.1966 while Dr. R.M. Bali and Dr. Jiwan Lal, who were in the Central Health Service on the date of its constitution on 9.9.1966 had been taken in the Specialists ' grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968. Therefore, under Rule 10 (a) (iii) of the Rules, Dr. S.P. Kapoor has to rank senior to Dr. R.M. Bali as well as Dr. Jiwan Lal who admittedly has to rank after Dr. R.M. Bali. Mr. Tarkunde submitted that a letter like the one dated 9.7.1971 mentioned above could have been addressed by the Central Government under Section 84 of the to the Administrator of the Himachal Pradesh Union Territory and that the letter dated 9.7.1971 referred to above could not have been written under that Section as Himachal Pradesh Union Territory ceased to be in existence when the full fledged Himachal Pradesh State came into existence on 25.1.1971 itself. Section 84 of the says that the "Central Government may give such directions to the State Governnent of Punjab and Haryana and to the Administrators of the Union Territories of Himachal Pradesh and Chandigarh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this part and the State Governments and the Administrator shall comply with such directions." Mr. Tarkunde relied in this connection upon the decision of this Court in Roshan Lal Tanldon vs Union of India(1) and submitted that having come into the Central Health Service on 1.11.1966 it is not open to Dr. S.P. Kapoor who came into that service subsequent to the date on which Dr. R.M. Bali joined that Service on the date of its initial constitution to contend that his seniority must be fixed 1069 with reference to the date of his appointment to the Punjab Civil Medical Service Grade I. In that decision we find the following passage at page 192: "At the time when the petitioner and the direct recruits were appointed to Grade 'D ' there was one class in Grade 'D ' formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade 'D ' were integrated into one class and no discrimination could therefore be made in favour of recruits from one source against the recruits from the other source in the matter of promotion to Grade 'C '. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade 'C '. In the present case it is not disputed on the part of the first respondent that before the impugned Notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that 1 rule was seniority cum suitability, and there was no rule of promotion separately made for application to the direct recruits. As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorb ed in Grade 'D ' by March 31, 1966 because the Notification provides that this group of Apprentice Train Examiners should first be accommodated enbloc in Grade 'C ' up to 80 percent of vacancies reserved from them without undergoing any selection. As regards 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioners belong the basis of recruitment was selection on merit and the previous test of seniority cum suitability was abandoned. In our opinion, the present case falls within the principle of the recent decision of this Court of Marvyn vs Collector ; We are of the opinion that the ratio of this decision will not apply to the facts of the present case. On the other hand, Mr. Mehta invited our attention to two decisions of this Court in N. Subba Rao etc. vs Union of India and Ors(1), and C.P. Damodaran Nayar and P.S. Menon vs State of Kerala 1070 and Others(1). The decision in N. Subba Rao etc. vs Union of India and ors. related to the inter se seniority of officers of two regions of different States which came to form a single State on Ist November, 1956. On 1.11.1956 the State of Andhra Pradesh came into existence under the . That State was formed out of the former State of Andhra Pradesh and the Telangana area of the former Hyderabad State. The appellants in that case were Engineers in the employment of Andhra Pradesh. On the formation of Andhra Pradesh, the appellants under the continued to serve the State of Andhra Pradesh. The respondents who were Telangana officers in the employment of the Hyderabad State continued to serve the State of Andhra Pradesh. The Central Government directed the State Government in September, 1956 to draw up provisional common Gradation List keeping in view the general principles agreed to at the Conference of the Chief Secretaries held in April and May, 1966. The State Government prepared a provisional common gradation list of Gazetted officers in November 1961. The Telangana Engineers challenged the common Gradation List by filing Writ Petition in the Andhra Pradesh High Court. This Court observed in the Judgment that: "Under the power is conferred on the Central Government to bring out the integration of the Service in the State of Andhra Pradesh by ensuring fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act. The Government of Andhra Pradesh has a duty to bring all relevant facts to the notice of the Central Government. Under the States ' Reorgnisation Act, the Central Government is entrusted with the power of the division and integration of the Service and the ensuring of fair and equitable treatment to all persons affected by the provisions of Section 115 of the Act in regard to allotment of officers from an existing State to a successor State. " In the case of C.P. Damodaran Nayar and P.S. Menon vs State of Kerala and others (supra) the State of Kerala came into being on 1.11.1956 and the appellant had been selected by the Madras Public Service Commission as a District Munsif and was posted as such on 26.5.1951 and he was in continuous service since then. The service of appellant was regularised as from 6.10.1961. The appellant was allotted to Kerala State with effect from 24.10.1956. On 26.3.1966 1071 the Kerala State published the final integrated list of the Travancore, Cochin and Madras Judicial officers in the integrated State of Kerala as on 1.11.1956, showing respondents 6 and 7, whose dates of commencement of continuous service were 20.7.1951 and 1.10.1951 respectively as senior to the appellant on the basis that he commenced his continuous service on 6.10.1951. The appellant questioned the final seniority list contending that the date of commencement of his continuous service is 26.5.1951. This Court observed thus: "Under Section 117 of the Act (States Reorganization Act 1956) the Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions." In accordance with the provisions of that Act, a meeting of the Chief Secretaries of the various States that were to be affected by the Reorganization ' was held at the invitation of the Central Government. In that meeting it was agreed that in determining the relative seniority as between two persons holding posts declared equivalent to each other and drawn from different States, inter alia the length of continuous service, whether temporary or permanent, excluding periods in which an appointment is held in a purely stop gap or fortuitous arrangement, should be taken into account. This Court held that the appellant in that case should be given the benefit of his seniority reckoning his continuous appointment and assigning the date 26.5.1951 and substituting the same in the final list for 6.10.1951, and observed: "It is common ground that the appellant has been appointed in a regular manner through the Public Service Commission and his appointment cannot by any stretch of imagination be made to fill a "pure stop gap or fortuitous" vacuum. As noted earlier, the Government of India has accepted the position that an allotted employee should not suffer any disadvantage if he would not have been subjected to a like handicap in his parent State. It is clear from the position taken by the Madras Government that the appellant would have got the benefit 1072 of his continuous appointment in Madras with effect from May 26, 1951. That being the position, the submissions of the learned counsel for the respondents are of no avail". We are of the opinion that the ratio of these two decisions relied upon by Mr. Mehta would apply to the facts of the present case. Section 45 of the lays down that "the Central Government may give such directions to the Government of the State of Himachal Pradesh as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and also the provisions of of the and the State Government shall comply with such directions ' ' . We agree with Mr. Mehta that the aforesaid letter dated 9.7.1971 from the Ministry of Health, Family Planning, Department of Health, Government of India, addressed to the Government of Himachal Pradesh, was written under the provisions of Section 45 of the . Mr. Tarkunde submitted that even if that letter dated 9. 7. 1971 had been written under the provisions of Section 45 of the , equivalent posts must be determined and that nobody has fixed the equivalent posts and it is for the Government of India to decide. We are of the opinion that this submission is not well founded as the equivalent grades have already been fixed by placing Dr. section P. Kapoor and Dr. R. M. Bali in the category of Specialists and Dr. Jiwan Lal in the category of Himachal Pradesh Health Service Grade I officer, as mentioned above by the Himachal Pradesh Government 's Notification No. 1 15/75 H&FP dated 9. 6. 1975 referred to above. The Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been discharged by the Central Government: (1) by Mr. Pande 's D. O. letter dated 14.2.1967, (2) the stand taken by Mr. 1 '. V. Menon Deputy Legal Adviser, Central Government in the meeting of officers held on 24.1.1972 and (3) the letter dated 9.7.1971 written by the Ministry of Health and Family Planning Welfare, Government of India to the Secretary to the Government of Himachal Pradesh. In these circumstances we are of the opinion that the learned Judges of the High Court have erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Service and not with reference to Rule 10 (a) (iii) of the Rules 1073 which had, however, been noticed by the learned Judges without a correct appreciation of its impact on what the Government of Himachal Pradesh should do in the matter of fixing the relative seniority of the officers drawn from the integrating States. We are of the opinion that inter se seniority has to be determined only in accordance with Rule 10 (n) (iii) of the Rules and that Dr. section P. Kapoor would be senior to Dr. R. M. Bali, who in turn would rank senior to Dr. Jiwan Lal. The annual confidential reports relating to Dr. section P. Kapoor, t Dr Jiwan Lal and others had to be looked into by the Departmental Promotion Committee on 3.11.1979. The contention of Dr. Jiwan Lal was that the annual confidential reports of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer not only junior to them but also an aspirant for promotion to a higher post alongwith them, and, therefore, these confidential reports should not have been taken into consideration for further promotion. The contention of the Himachal Pradesh Government was that the confidential reports made by Dr. J. C. Sharma were not taken into account and that Dr. Grover 's reports were revised, sometimes with additional remarks for or against the individuals by higher authorities and they were not the only reports which were taken into consideration by the Departmental Promotion Committee. It is clear from this contention of the Himachal Pradesh Government that Dr. Grover 's reports were taken into consideration by the Departmental Promotion Committee. though it is stated that they had been earlier revised by higher authorities. Dr. Grover was in the field competing with Dr. S.P. Kapoor, Dr. R.M. Bali and Dr. (Mrs.) Damyanti Kapur at the relevant time for promotion to the higher post Therefore, it would not have been fair for the Depart mental Promotion Committee to take into account the annual confidential reports made by Dr. Grover though they might have been revised by the higher authorities Section 2 (g) of the Rules defines a Departmental Promotion Committee as: "a Committee constituted from time to time by the Government for the purpose of making recommendation for promotion or confirmation in 2nd category". Dr. Jiwan Lal has stated in his Special Leave Petition that under the Rules the Departmental Promotion Committee of Himachal 1074 Pradesh in respect of the Health Services consisted of the Chief Secretary, Financial Commissioner and Secretary, Health and Family Welfare, of the Himachal Pradesh Government. There is no dispute about this fact. But the Departmental Promotion Committee which met on 3.11.1979 to consider the question of appointment of Deputy Directors and Director of Health Services, consisted of the Chief Secretary, Financial Commissioner and Principal Secretary to the Chief Minister of Himachal Pradesh, who was appointed additionally as Secretary of Health and Family Welfare in the absence on leave of the regular Secretary, Health and Family Welfare from 3rd to 8th November, 1979. It is seen from the counter affidavit of the Himachal Pradesh Government that the Director of Health Services and Deputy Director of Health Wealth were holding the posts on ad hoc basis from the year 1973. The final seniority list was prepared only on 2.11.1979 and the Depart mental Promotion Committee was constituted on 3.11.1979. The Joint Secretary, Personnel Department, Himachal Pradesh Government had written the letter No. Per (A l) B 79 dated 3.11.1979 requesting Mr. R. C. Gupta, Secretary (Health) Himachal Pradesh Government to attend the Departmental Promotion Committee Meeting to be held at 3.00 P. M. On that day for considering the names of officers for the posts of Director, Health Services. It is seen from what has been stated above and it is also admitted by the Himachal Pradesh Government that the selection of the Deputy Directors and the Director of Health Services from amongst the Deputy Directors had been made by the Departmental Promotion Committee on 3.11.1979 itself and that even the orders of appointment had been issued on the same day with the approval of the Governor of Himachal Pradesh. Though before the High Court it does not appear that Dr. Jiwan Lal had alleged any malafides to anybody he has alleged in Special Leave Petition that the constitution of the Departmental Promotion Committee and the process of selection and appointment were obviously malafides and that they were appointed on the date on which Mr. Yadav, the regular Secretary, Health and Family Welfare Department, was on leave and that this haste suggests that he would not have agreed to carry out the political wish of the then Chief Minister in making the appointments in the post haste manner. Though it is not possible to accept the belated contention that there was any malafides on the part of the then Chief Minister in the matter of constitution of the Departmental Promotion Committee with his Principal Secretary as one of its members in the place of the regular Secretary, Health and Family Welfare, we are of the opinion 1075 that there is room for suspecting the reason why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority list on 2.11.1979, in the light of the admitted position that the Deputy Directors and Director of Health Services, Himachal Pradesh were holding ad hoc appointments from 1973. The matter was not such as could not have been put off by a few days. Such rush is not usual in any State Government. The post haste manner in which these things have been done on 3.11.1979 suggests that some higher up was interested in pushing through the matter hastly when the regular Secretary, Health and Family Welfare was on leave. Therefore, we are of the opinion that the matter requires to be considered afresh. In regard to the question of rotation, Rule 9(4) of Rules lays down: (I) super time Grade II (General) posts shall be filled by promotion of (i) HPHS Grade I officers with not less than seven years of service in the category or (ii) Specialists ' Grade officers with not less than five years service in that category. The selection will have to be on the recommendation of a Departmental Promotion 1) Committee on the basis of merit cum seniority of the officers concerned at (i) and (ii) above on 50: 50 basis keeping in view the nature of the duties of the post. Suppertime Grade I (General) posts shall be filled by promotion on the recommendations of the Departmental Promotion Committee on the basis of merit with due regard to seniority of officers holding the posts of Deputy Directors with not less than five years service in that category. The contention of Dr. Jiwan Lal was that the Departmental Promotion Committee should not have started the rotation to post of Director of Health Services with a Specialist. On the other hand, the contention of the Himachal Pradesh Government before the High Court was that Rule 9 was silent on the question as to the category with which the roster should be started and, therefore, the State Government decided to supplement the Rule by starting the roster with the category of Specialists having regard to the fact that the senior most Specialist officer available on the date of the Departmental Promotion Committee meeting on 3.11.1979 had put in greater length of qualifying service than the senior most HPHS (Grade I) officer. Rule 21 of the Rules provides that if any difficulty is felt in giving effect to provisions of these Rules the Government may in consultation with the Public Service Commission give such directions not inconsistent with the provisions of those Rules, as appear to be necessary or expedient for the removal of the difficulty. In view of the fact that Rule 9(4) does not provide the category with which the roster may be started. 1076 whether with HPHS (Grade I) officer or Specialists, difficulty appears to have arisen in starting the roster. Therefore, the Government stopped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades, namely, Specialists and HPHS (Grade 1) officers. The learned Judges of the High Court have expressed the view that the Specialists had an advantage for their category starting the roster by the senior most of the Specialists having put in more number of years of qualifying service than the HPHS (Grade I) officers. We are of the opinion that the learned Judges were perfectly justified in taking this view and that the Government was right in getting the roster started with Specialists instead of of HPHS (Grade I) officers. For the reasons stated above Civil Appeal No. 2104 of 1980 is allowed and Civil Appeal No. 2384 of 1980 is dismissed. The principle on which relative seniority should be fixed having been settled in this judgment. it shall be fixed accordingly and the matter of selection of Deputy Directors and Director of Health Services, Himachal Pradesh shall be decided afresh according to the Rules and in the light of this judgment. Under the circumstances of the case, we make no order as to costs. N.V.K. C.A. 2104 of 1980 allowed and C.A. 2384 of 1980 dismissed.

The Central Health Service was constituted by the Central Government and the Central Health Service Rules 1963 came into force with effect from 15 5 1963. These Rules were amended by the Central Health Service (Amendment) Rules 1966. Before the Punjab Reorganisation Act came into force the State of Punjab had its own Health Service known as the PCMS with two grades, Grade I and Grade II. After the Punjab Reorganisation Act came into force, and the Central Health Service was formed, some persons belonging to the PCMS and some persons working as Medical officers in hospitals run by Local Bodies were inducted into that Service after they had exercised their option to be inducted therein. The petitioners and contesting employees respondents in writ petition nos 2 of 1980 and 288 of 1979 filed in the High Court had been inducted into the Central Health Service after they had exercised their option. When the Himachal Pradesh Union Territory was in existence, its Health Department was manned by officers of the Central Health Service, but after Himachal Pradesh became a full fledged State, the Himachal Health Service was constituted on 24.1.1974 1044 under the Himachal Pradesh Health Service Rules which came into force on 19.1.74. The members of the Central Health Service serving in the erstwhile Himachal Pradesh Union Territory were asked to exercise their option to continue in the new Himachal Pradesh Health Service. The writ petitioners and the contesting employees respondents exercised their option to continue in the Himachal Pradesh Health Service. The Appellant in C.A. No. 2384 of 1980 who was one of the petitioners in writ petition No. 288 of 1979 contended before the High Court that his reversion from the post of Deputy Director of Health Services to which post he was appointed on a regular basis was void. The petitioner in writ petition No. 2 of 1980 claimed that the seniority list of Specialists prepared by the State Government was contrary to the rules and that the appointment of the appellant in C.A. No. 2104 of 1980 and of respondents 2 and 4 in writ petition 288 of 1979 as Deputy Directors of Health Services was contrary to the provisions of the 1974 Rules. It was contended that the appointments were also vitiated because the Departmental Promotion Committee constituted for making appointment was not properly constituted because one of the members of the committee the Principal Secretary to the Chief Minister was unauthorised by inducted into the Committee in place of the Secretary to the Government Health and Family Welfare Department and (ii) that their confidential reports were written by an officer junior to them and who was an aspirant for promotion to the higher post. The appointments of the Director of Health Services and the two Deputy Directors having been made in haste immediately after the seniority list was issued rendered the appointments void. The petitioner in writ petition 2 of 1980 claimed that the inter se seniority between himself and the respondents could not be disturbed at the time of absorption in the Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and the protection given to the members of the Punjab Service. These two petitions were contested. It was contended by the State of Himachal Pradesh that the petitioners in W.P. No. 288 of 1979 were appointed as Deputy Directors of Health Services only on ad hoc basis that the post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop gap arrangement. The incumbent to the post of Secretary Health and Family Welfare being on leave at the relevant period the Principal Secretary to the Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee the constitution of the Departmental Promotion Committee was perfectly valid. The annual confidential reports which were written by the junior officer who was working on ad hoc basis were not the only reports taken into account by the Departmental Promotion Committee. The post of Director of Health Services was manned on an ad hoc basis. Ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2.11.1979 and since that impediment was over the Departmental Promotion Committee met on 3.11.1979 and orders of appointment to those selected by that Committee were issued on the same day. Specialists were officers possessing post graduate qualifications while General Duty officers were as a rule only graduates. The Rule making autho 1045 rity divided the higher posts equally amongst the officers of the two categories taking all factors into consideration. Therefore the claim for being considered to the post of Director of Health Services is wholly untenable having regard to Rule 9(3) of the Rules which provides that only Deputy Directors should be considered for promotion to the post of Director of Health Services. On behalf of the Central Government it was contended that the Central Health Service was constituted with effect from 9 9.1966 and the seniority of the Medical Officers appointed to the service with effect from that date had been determined to be that officers appointed to a grade under rule 7A of the Central Health Services Rules 1963 as amended by the Central Health Service (Amendment) Rules 1966 will rank en bloc senior in that grade to those who may be appointed to that grade under rule 8A. The officers of the Punjab Government were appointed to the Central Health Service with effect from 1.11.1966 under rule 8A. As These officers have come into the Central Health Service only after the initial constitution of that service was over it was not possible to assign them seniority over the officers appointed at the initial constitution of the service. The Government of Himachal Pradesh having proposed to formulate their own Health Service and the Medical officers who are to opt from the Central Health Service are to be included in that service those officers were asked to exercise their option. Those officers who opted to join the proposed Himachal Pradesh Health Service were given the benefit of past continuous service while fixing their seniority in the Himachal Pradesh Health Service. The High Court allowed the writ petitions and held (1) that the petitioners therein being appointed as Deputy Directors on ad hoc basis cannot claim a right to the post of Deputy Directors of Health Services or to seniority on the basis of ad hoc appointment though then can add the period of such appointment in the matter of experience for promotion and confirmation. (2) The Principal Secretary E to the Chief Minister was appointed to function additionally as Secretary to Government Health and Family Welfare Department as per office order dated 2.11.1979 and therefore the Departmental Promotion Committee had been properly constituted. (3) Seniority has to be determined on the basis of the date of induction into the Central Health Service and not on the basis of the earlier service. Allowing the appeal to this Court ^ HELD: 1. The High Court erred in holding that the inter se seniority has to be determined only on the basis of the date of induction into the Central Health Service and not with reference to Rule 10 (a)(iii) of the Rules. Inter se seniority has to be determined only in accordance with Rule 10 (a)(iii) of the Rules and Dr. S.P. Kapoor would be senior to Dr. R.M. Bali who in turn would rank senior to Dr. Jiwan Lal. [1072 1073 B] In the instant case the Central Government was under an obligation to see that in fairness and equity the seniority of officers drafted into the newly formed State from the integrating States is properly fixed and that obligation has been properly discharged by the Central Government. Dr. section P. Kapoor had been appointed to the PCMS (Grade I) post on 29.1.1965 and he was inducted into the Specialist Grade in the Central Health Service with effect from 1.11.1966 while 1046 Dr. R.M. Bali and Dr. Jiwan Lal who were in the Central Health Service on the date of its constitution on 9.9.1966 had been taken in the Specialists Grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9.9.1968. [1072 1068 C] Roshan Lal Tandon vs Union of India ; held inapplicable. N. Subba Rao etc. vs Union of India and Ors. , ; and C.P. Damodaran Nayar and P.S. Menon vs State of Kerala and others ; referred to. 2. The annual confidential reports were initiated by an officer not only junior but also an aspirant for promotion to the higher post and therefore such Confidential reports should not have been taken into consideration for further promotion. [1073 C] In the instant case it would not have been fair for the Departmental Promotion Committee to take into account the annual confidential reports made by Dr. Grover though they might have been revised by the higher authorities.[1073F] 3. The post haste manner in which the Departmental Promotion Committee Meeting was held on 3.11.1979 suggests that some higher up was interested in pushing through the matter hastily when the regular Secretary Health and Family Welfare was on leave. The matter is therefore required to be considered afresh. [1075 B] In the instant case the Director of Health Services and Deputy Director of Health Services were holding the posts on ad hoc basis from the year 1973. The final seniority list was prepared only on 2.11.1979 and the Departmental Promotion Committee was constituted on 3.11.1979. The Joint Secretary Personnel Department had written the letter dated 3.11.1979 requesting the Principal Secretary to the Chief Minister who was appointed additionally as Secretary of Health and Family Welfare to attend the Departmental Promotion Committee Meeting at 3.00 p.m. On that day. There is room for suspecting the reason why the whole thing was completed in haste on 3.11.1979 after the preparation of the final seniority list on 2.11.1979. The matter was not such as could not have been put off by a few days. Such rush is not usual is in any State Government. [1074 GD. 1075 A] 4. The High Court was right in finding that the Specialists had an advantage for their category starting the roster by the senior most of The Specialists having put in more number of years of qualifying service than the HPHS (Grade I) officers and that the Government was right in getting the roster started With Specialists instead of HPHS (Grade I) officers. [1076 B C] In the instant case as Rule 9(4) did not provide the category with which the roster may be started whether with HPHS (Grade I) officers or Specialists difficulty arose. The Government therefore stepped in and supplemented the Rule by directing that the roster may be started with the category of Specialists keeping in view the length of qualifying service in each of the two grades namely Specialists and HPHS (Grade I) officers. This they were entitled to by Rule 21 [1075 H. 1076 A]

Civil Appeals Nos. 1573/88, 3954/87 and 3370 of 1988. From the Judgment and Order dated 1.2.1988, 10.6.1987 and 28:4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/1373/85 C Order No. 87.,88 C, 1704/83 D Order No. 463/87 D and Appeal No. C 605 1986(C) in Order No. 429/88 C respectively. A.K. Ganguli, P. Parmeshwaran, T.V.S.N. Chari and Mrs. Sushma Suri for the Appellant. section Ganesh, K.J. John and San jay Grover for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. These three appeals under Section 130 E(b) of the raise the same issue. They are therefore disposed of by a common order. The respondent M/s. K. Mohan & Co. imported, from Japan, "metallised poIyester films" under an import licence dated 14.6.1978. The goods were admittedly in the shape of film rolls several metres long. They were cleared on payment of customs duty leviable under the (CA) as well as the additional duty of customs (or countervailing duty) leviable under section 3 of the Customs Tariff Act, 1976 (CTA). Subsequently, the respondent firm made three applica tions for the refund of the amount of the additional duty of customs paid by it. The claim for refund was based on the terms of a notification of exemption issued under section 25(1) of the CA. Under notification No. 228/76 dated 2.8.1976, an exemption from the customs duty payable under section 3 of the CTA was granted in respect of "articles made of plastics, all sorts, but excluding those specified in the table an nexed hereto and falling within Chapter 39 of the First Schedule to the (51 of 1975)". The annexed table 234 excepted the following items from the purview of the exemp tion: "Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including tubings and polyvinyl chloride sheets". Notification No. 443 dated 29.11.76 omitted the words of notification No. 228 which have been underlined above but left the main notification otherwise untouched. The assesses ' claim for refund was accepted by the Tribunal. The Tribunal held that the goods imported by the respondent were articles made of plastics. But they were 'films ' and not one of the categories of articles enumerated in the table. In reaching its conclusion, the Tribunal followed the decisions, of the Madras High Court in Precise Impex P. Ltd. vs Collector, , of the Calcut ta High Court in Continental Marketing P. Ltd. vs Union, and of the Bombay High Court in A.V. Jain vs Union, WP 2136 of 1986, decided on 30.1. 1987. The Tribu nal also referred to its own earlier decisions in Export India Corpn. P. Ltd. vs Collector and Collector vs Fancy Dyeing and Printing works, Bombay. The Collector of Customs is aggrieved by the orders of the Tribunal and hence these appeals. There are three appeals as there were three appli cations for refund by the assessee in respect of different periods. There is no dispute before us that the goods in question are articles made of plastics. This being so, the assessee is entitled to the exemption conferred by the notification unless the goods answer the description of one or other of the specific items set out in the table. The onus of showing this is clearly on the Revenue. The department contends that the goods are "sheets" or "foils" or "other rectangular or profile shapes" and hence liable to duty. On the other hand the assesses ' case is that they are "films", a specie of plastic articles different from any mentioned in the table. It is alternatively contended that, even if they are treated only as thin sheets of plastic material, they can be more accurately described only as "sheetings" and not "sheets". It is pointed out that the goods are in the form of large rolls containing films several metres long. Such huge lengths can only be called "sheetings" for the expression "sheets", it is said, connotes only smaller lengths or bits cut out from "sheetings" which mean sheets of immense lengths. Also, being in the form of rolls, they cannot be said to be articles of "rectangular shape" merely because, when cut into segments, they may fall into rectangular pieces. 235 After giving the matter our careful consideration, we are of opinion that the view taken by the three High Courts and the Tribunal that "films" made of plastic fall in a category of their own and do not fall within the categories of articles excepted by the table is correct. We have come to this conclusion because there are various statutory indications and other material which support such a conclu sion: (1) Duty under the CTA in respect of artificial resins, plastic materials of various types and articles thereof is leviable under section 3 read with Chapter 39, containing heading nos. 39.01/06 and 39.01/07 in section VII of the First Schedule to the CTA. This aspect found a reference in the original notification No. 228 but was omitted, apparently as being redundant, by the amendment of 29.11.1976. In Note 3 at the commencement of the said Chapter 39, clause (c) talks of "seamless tubes, rods, sticks and profile shape while clause (d) refers to "plates, sheets, films, foils and strips". This indicates that plates, sheets, films, foils, etc. are categories of plastic articles distinct from one another. (2) Notification No. 228 contains a reference to the tariff schedule under the Central Excises & Salt Act, 1944 (CESA). The CESA, read with item 15A of its First Schedule, provides for the levy of an ad valorem duty of excise on all "artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof" described in greater detail in sub items (1) to (4) thereunder. Of these, sub item (2) reads: (2) Articles made of plastics all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexi ble, including lay flat tubings and polyvinyl chloride sheets, not otherwise specified"; and Explanation I appended to item 15A clari fies: "For the purpose of sub section (2), "plas tics" means the various artificial or synthet ic resins or plastic materials or cellulose esters and ethers included in sub item (1)" Comparing item 15A of the CESA tariff with the notification under consideration, it will be seen that the intention was to exempt, from countervailing duty, "articles made of plastics, all sorts" (the expression "plastic" having the very wide meaning given to it in Explanation 236 I of the CESA tariff) and falling within the main part of sub item (2) of item 15A and to deny exemption to goods which fall under the second (inclusive) part of the said sub item. In this context it is of some interest to refer to item 15A as substituted by the Finance Act, 1982. This item describes in greater detail than before various "artificial and synthetic resins and plastic materials" liable to duty. of these item (2) reads: "Article of materials described in sub item (1) including the following, namely: Boards, sheeting, sheets and films, whether lacquered or metallised or laminated or not: lay flat tubings not containing any textile material. This item, it will be seen, does not stick to the classifi cation made earlier in sub item (2). However, it does make a distinction between "sheeting, sheets and films". (3) There are a number of exemption notifications issued under rule 8(1) of the Central Excise Rules in respect of items falling under Item No. 15A of the CESA Tariff which make a pointed reference to 'films ' and draw a similar distinction as above. Notification No. 68 of 1971 dated 29.5. 1971 exempts articles made of plastics, all sorts, falling under sub item (2) of Item No. 15A except (i) rigid plastic boards, sheeting, sheets and films, whether laminat ed or not; and (ii) flexible polyvinyl chloride sheeting, sheets, films and lay flat tubings not containing any tex tile material. Notification No.69 of 1971, dated 29.5.1971, read with notification No. 7417 and 107/73, exempts articles made of polyurethane foam except, inter alia, sheets and sheetings. Notification No. 70 of 1971, of the same date, restricts the duty on rigid polyvinyl chloride boards, sheeting, sheets and films. Notification No. 71 of 1971, also of the same date, grants limited exemption, subject to certain conditions to rigid plastic boards, sheeting, sheets and films, whether laminated or not, other than those manu factured from polyvinyl chloride. Notification No.72 of 1971 of the same date limits the excise duty in respect of flexi ble polyvinyl chloride sheeting, sheets, films and lay flat tubings, not containing any textile material and falling under sub item (2) of Item No. 15A to 25 per cent (amended later to 30%) ad valorem, subject to certain conditions. Notification No. 39 of 1973 dated 1.3. 1973, exempts rigid and flexible polyvinyl chloride films of thickness below 0.25 mm as well as polyvinyl chloride lay flat tubings in certain circumstances. By notifi 237 cation No. 151 of 1975 dated 31.5.1975 exemption was granted in respect of cellulose tri acetate, when intended for use in the manufacture of cine films, X ray films or photograph ic films. Item 15B talks of "film or sheet" of cellulose and a notification of 1981 specifically added item 15BB to the Tariff under CESA dealing with polyster films as a separate item, though this entry was subsequently omitted by the Finance Act of 1982. All these indicate that 'film ' is a well known, distinct and independent category of plastic article known to commerce. (4) There is a like distinction maintained even by the notifications issued under section 25 of the in regard to items falling within chapter 39 of the First Schedule to CETA. Notification No. 227 dated 2.8.1976 limits the rate of duty on various items, two of which are "film scrap" and "cellulose nitrate sheets and cellulose nitrate films". We then have notification No. 223 of the same date, which falls for interpretation now and which omits a refer ence to "films" while enumerating various other categories of plastic articles. Notification No. 229, also of 2nd August, 1976, restricted the customs duty on metallised or plain plastic films imported for certain specified purposes to 60%. Notification Nos. 230 dated 2nd August, 1976 and 36 of 1.3. 1978, also granted limited exemption to other types of polyster films. (We must, however, point out that these last two notifications are somewhat ambiguous for our present purposes as they also specifically provide for an exemption to the said articles from the additional duty which, on the argument of the assessee before us, would be really unnecessary. The Revenue 's stand is that the articles in question may be films in a generic sense but that, in this particular case, they are either 'foils ' or 'sheets '. For this purpose our attention is drawn to the discussions contained in the Bombay case where the issue was decided on the basis of evidence produced by both parties. This shows that according to the glossary of terms used in the plastic industry issued by the Indian Standards Institution (IS 2828 1954, as well as in 1979), a film is "a sheeting having nominal thickness not greater than 0.25 mm". A report of the Chief Chemist of the Customs Department as well as extracts from certain text books were produced to show that 'foil ' is the term "applied to materials which are made in continuous rolls and are less than 1/1000th of an inch thick (0.254 mm). In the present case, the film rolls were of thickness varying between 0.025 mm to 0.501 mm. It is, therefore, submitted that to the extent the material was less than .0254 mm in thickness it would constitute 'foils ' and to the extent 238 it exceeded 0.25 mm in thickness it will be a 'sheet '. It is urged that since 'sheets ' and 'foils ' are specifically mentioned in the entry in question, the imported goods, at least to the extent indicated above, cannot qualify for exemption. The answer given by the Bombay High Court to the conten tion that the goods were 'foils ' was that while it may be that, technically and scientifically speaking, the articles in question may be capable of being characterised as 'foils ', one is concerned in a customs or excise matter not so much with the technical or scientific definitions of these terms but rather with commercial usage. One has to see how the trade understands the expression "films" and one should also bear in mind in this connection that the expres sions set out in the table are applicable not merely to the articles with which we are at present concerned but also to various other types of articles of plastics with varied commercial use. The question is whether the trade under stands the article presently in question as a 'film ' or whether there is a distinction in trade usage also between 'foils ' and 'films '. It has been pointed out by the Bombay High Court, on the basis of the evidence before it, that in the understanding of those who are in this particular trade, metallised polyester films are referred to as 'films '. Reference has been made to the classification made by the only manufacturer of polyester films in India for purposes of CEA. Reference has also been made to the brochures brought out by the Japanese manufacturers of the goods in question which show that metallised polyester 'films ' could consist of films of the thickness of even 12 to 25 microns. It has been pointed out that, under the Import Export Policy of India for 1984 85, reference has been made to metallised polyester 'films ' having thickness of even less than 6 microns which are used in the electronic industry. In the light of the above material and the absence of any additional material led in the present case, we agree with the view of the Bombay High Court that, though for certain purposes there is a distinction between 'films ', 'foils ' and 'sheets ', so far as the article presently in question is concerned it is recognised in trade only as 'film '. It is difficult to imagine any person going to the market and asking for these films by describing them either as 'foils ' or as 'sheets '. We are therefore of opinion that the goods under consideration cannot be described either as 'foils ' or as 'sheets '. There is also another reason why the articles in the present case, to the extent they have thickness of more than 0.25 mm cannot be described as 'sheets '. Shri Ganesh for the assessee contended and we 239 think rightly that a film roll of indefinite length and not in the form of individual cut pieces can be more appropri ately described as 'sheetings ' rather than 'sheets '. The Indian Standard Institution also defines 'sheets ' as a piece of plastic 'sheeting ' produced as an individual piece rather than in a continuous length or cut as an individual piece from a continuous length. We have also earlier pointed out that there are various items in various notifications making distinct reference to sheets and sheetings. Actually, we also think that there is a factual confusion on this aspect. While One of the Collectors has referred to the goods as being of thickness varying between 0.025 mm and 0.501 mm, it is seen from another of the orders that the goods are 3000 metres in length, 0.501 mm in width and 0.025 mm in thick ness. If the latter is the correct version and all the goods are only 0.025 mm in thickness, the question now posed will not at all arise. However, as indicated above, there is force in the contention of Shri Ganesh that if the articles be held not to be 'films ', because they exceed 0.25 mm in thickness, they would be 'sheetings ' rather than 'sheets ' and would therefore not fall within the meaning of the expression "sheets" in the table. We would also like to add that the expression 'other rectangular or profile shapes ' in the table is also not appropriate to bring in the items in question. For one thing, the articles have a distinct name in the market as 'films ' and therefore they are outside the table as already pointed out. For the same reasons as we have mentioned in the context of 'foils ' and 'sheets '; it will not be possible to accept the contention that articles which have a clear commercial identity as 'films ' should be brought within the wide and vague expression "other rectangular or profile shapes", because, if the film is cut into small pieces, each piece will be rectangular in shape, The items imported do not come in a rectangular shape; they are imported as rolls of polyester films. They are not articles of rectangular shape. Nor would it be possible to treat them as of other 'profile ' shapes. We are unable to attribute any precise meaning to the expression 'profile ' shape but it cannot be taken to be comprehensive enough to take in any shape what ever, as is contended for. If we give the expression 'rec tangular or other profile shapes ' in the table such wide and unrestricted interpretation as is suggested, then practical ly any article of plastic can be brought within the meaning of one or other of the expressions used in the table and thus the entire exemption can be altogether deprived of any content. For the above reasons, we are of opinion that the articles are 240 'films ' and, as this expression does not find specific mention in the table, the assessee is entitled to exemption under the main part of the notification. The conclusion arrived at by the Tribunal is therefore upheld and these appeals are dismissed with no orders as to costs. Y. Lal Appeals dis missed.

The Respondent firm imported from Japan, "metallised polyester films" which were in the shape of film rolls several metres long. The goods were cleared on payment of customs duty as well as additional duty/countervailing duty leviable under section 3 of the Customs Tariff Act. Thereaf ter the Respondent firm moved three applications claiming refund of the additional duty of customs paid by it. The claim was made under the terms of a notification of exemp tion issued under section 25(1) of the Customs Act. Under notification No 228/76 dated 2.8.1976, an exemption from the Customs Tariff Act was granted in respect of "articles made of plastics, all sort but excluding those specified in the Table annexed and failing under Chapter 39 of the First Schedule to the Customs Tariff Act. The Tribunal accepted the claim of refund made by the ' Respondent. In so doing it relied on the decisions of the Madras High Court in Precise Impex P. Ltd. vs Collector, , of the Calcutta High Court in Continental Marketing P. Ltd. vs Union, and of the Bombay High Court in A.V. Jain vs Union, WP 2136 of 1986 decided on 30.1.1987. The Tribunal also referred to its earlier decision in Export India Corporation P. Ltd. vs Collector; and Collector vs Fancy Dying and Printing Works Bombay. The Tribunal held that the goods imported by the Re spondent were articles made of plastics but they were "films" and thus not one of the Categories of articles mentioned in the Table. Aggrieved by the decision of the Tribunal, the Collector of Customs has filed these appeals under section 130 E(B) of the . 232 Before this Court the Department contended that the goods are "sheets" or "foils" or other "rectangular or profile shape" and hence liable to duty. The assesses ' assertion is that the goods are "films" though specie of plastics articles yet they are different from any mentioned in the table. According to it even if they are treated only as thin sheets of plastic material, they can be described only as "sheetings" and not sheets. On consideration of the rival contentions advanced by the parties and after making reference to the other relevant notifications granting exemption issued under rule 8(1) of the Central Excise Rules in respect of items falling under Item No. 15A of the Central Excise Tariff Act, this Court dismissing the appeals, HELD: Films made of plastic fall in a category of their own and do not fail within the categories of articles ex cepted by the Table. Film is a well known, distinct and independent category of plastic article known to commerce. [235A] The Court agreed with the view of the Bombay High Court that, though for certain purposes there is a distinction between "films", "foils" and "sheets", so far as the article presently in question is concerned it is recognised in trade only as "film". [238F] The goods under consideration cannot be described either as "foils or sheets". A film roll of indefinite length and not in the form of individual cut piece can be more appro priately described as "sheetings" rather than ' 'sheets". [238G ;239A] The expression "other rectangular or profile shapes" in the table is also not appropriate to bring in the items in question. For one thing, the articles have a distinct name in the market as "films" and therefore they are outside the table. It will not be possible to accept the contention that articles which have a clear commercial identity as "films" should be brought within the wide and vague expression "other rectangular or profile shapes", because if the film is cut into small pieces each piece will be rectangular in shape. The items imported do not come in a rectangular shape they are imported as rolls of polyester films. They are not articles of rectangular shape. Nor would it be possible to treat them as of other "profile" shape. The Court was unable to attribute any precise meaning to the expression "profile" shape but it cannot be taken to be comprehensive enough to take in any shape whatever. If the expression "rectangular" or other "profile" shape in the table is given 233 such wide and unrestricted interpretation then practically any article of plastic can be brought within the meaning of one or other of the expressions used in the Table and thus the entire exemption can be altogether deprived of any content. The Court took the view that the articles are "films" and, as, this expression does not find specific mention in the table, the assessee is entitled to exemption under the main part of the notification. [239E H; 240A]

Appeals Nos, 731 732 of 1964. Appeals by special leave from the order dated January 29, 1963 of the Commissioner of Income tax, Bombay City 1, in No. 1/RP/BBY/40 and 41 of 1961. N. A. Palkhivala, T. A. Ramachandran, section P. Mehta and O, C. Mathur, for the appellant. Sarjoo Prasad, R. Ganapathy Iyer and R. N. Sachthey, for the respondent. The Judgment Of SARKAR, C.J. and MUDHOLKAR, J. was delivered by SARKAR, C.J. BACHAWAT, I. delivered a dissenting opinion. Sarkar. The assessee was an advocate of the High Court of Bombay and was practicing his profession there till March 1, 1957 when he was elevated to the Bench of that Court. He then ceased to carry on his profession and has not resumed it since. As an advocate he had been assessed to income tax on his professional income, his accounting years for the assessments being the calendar years, When he was raised to the Bench, various fees for professional work done by him were outstanding. In the years 1958 and 1959 during no part of which he had carried on any profession, he received certain moneys on account of these outstanding fees. 297 His accounts had always been kept on the cash basis. The question is. whether be is liable to pay income tax on those receipts. We shall first make a few general observations. Section 6 of the Income tax Act, 1922 specifies six sources or heads of income which are chargeable to tax. In order to be chargeable, an income has to be brought under one of these six heads. section 6 also provides that the chargeability to tax shall be in the manner provided in sections 7 to 12B of the Act. Each of these sections lays down the rules for computing income for the purpose of chargeability to tax under one or other of the heads mentioned in section 6. An income falling under any head can only be charged to tax if it is so chargeable under the corresponding computing section. The fourth head of income in section 6 is "Profits and gains of business, profession or vocation" and the fifth head "income from other sources". The fifth head is the residuary head embracing all sources of income other than those specifically mentioned in the section under the other heads. Then we observe that the several heads of income mentioned in section 6 are mutually exclusive; a particular income can come only under one of them: The United Commercial Bank vs The Commissioner of Income Tax(2). We now turn to the present case. The receipts in the present case are the outstanding dues of professional work done. They were clearly the fruits of the assessee 's professional activity. They were the profits and gains of a profession. They would fall under the fourth head, viz., "Profits and gains of business, profession or vocation". They were not, however, chargeable to tax under that head because under the corresponding computing section, that is, section 10, an income received by an assessee who kept his accounts on the cash basis in an accounting year in which the profession had not been carried on at all is not chargeable and the income in the present case was so received. This is reasonably clear and not in dispute: see Commissioner of Income Tax vs Express Newspapers Ltd.(1). Can the receipts then be income falling under the residuary head of income and charged to tax as such? The Commissioner of Income tax from whose decision the present appeal has been taken by the assessee, held that it was chargeable under that head. He came to that conclusion on what he thought were the general principles and also on the authority of a certain observation of Chagla, J. in Re. B. M. Kamdar(3). The observation of Chagla, J. does not seem to us to be of much assistance for the decision in that case was not based on it nor is it supported by reasons. We find ourselves unable to agree with the learned Judge. We may add that apart from the observation in Kamdar 's case(1), there does not appear to be any direct authority supporting the view of the Commissioner. (1) ; (2) (3) I.T.R. 10. 298 As to the general principles, we first observe that as the heads of income are mutually exclusive, if the receipts can be brought under the fourth head, they cannot be brought under the residuary head. It is said by the Revenue that as the receipts cannot be brought to tax under the fourth head they cannot fall under that head and must therefore fall under the residuary head. This argument assumes, in our view, without justification, that an income falling under one head has to be put under another head if it is not chargeable under the computing section corresponding to the former head. If the contention of the revenue is right, the position would appear to be that professional income of an assessee who keeps his account on the cash basis would fall under the fourth head if it was received in a year in which the profession was being carried on, but it would take a different character and fall under the residuary head if received in a year in which the profession was not being carried on. We are unable to agree that this is a natural reading of the provisions regarding the heads of income in the Act. Whether an income falls under one head or another has to be decided according to the common notions of practical men for the Act does not provide any guidance in the matter. The question under which head an income comes cannot depend on when it was received. If it was the fruit of professional activity, it has always to be brought under the fourth head irrespective of the time when it was received. There is neither authority nor principle for the proposition that an income arising from a particular head ceases to arise from that head because it is received at a certain time. The time of the receipt of the income has nothing to do with the question under which particular head of income it should be assessed. It is then said that the receipts had to be included in the total income stated in section 4 and since they do not fall under the exceptions mentioned in that section, they must be liable to tax and, therefore, they must be considered as income under the residuary head as they could not otherwise be brought to tax. This contention seems to us to be ill founded. While it is true that under section 4 the receipts are liable to be included in the total income and they do not come under any of the exceptions, the contention is based on the assumption that whatever is included in total income under section 4 must be liable to tax. We find no warranty for this assumption. Section 4 does not say that whatever is included in total income must be brought to tax. It does not refer at ill to chargeability to tax. Section 3 states that "Tax. shall be charged . . in accordance with, and subject to the provisions, of this Act in respect of the total income". This section does not, in our opinion, provide that the entire total income shall be chargeable to tax. It says that the chargeability of an income to tax has to be in accordance with, and subject to the provisions of the Act. The income has therefore to be brought under one of the heads In section 6 and can be charged to tax only if it is so chargeable under 299 the computing section corresponding to that head. Income which comes under the fourth head, that is, professional income, can be brought to tax only if it can be so done under the rules of computation laid down in section 10. If it cannot be so brought to tax, it will escape taxation even if it be included in total income under section 4. Furthermore, the expression "total income" in section 3 has to be understood as it is defined in section 2(15). Under that definition. total income means "total amount of income, profits and gains referred to in sub section (1) of section 4 computed in the manner laid down in this Act", that is, computed for the purpose of chargeability under one of the sections from section 7 to section 12 B. The receipts in the present case, as we have shown, can only be computed for chargeability to tax, if at all, under section 10 as income under the fourth head. If they cannot be brought to tax by computation under that section, they would not be included in "total income" as that word is understood in the Act for the purpose of chargeability. That all income included in total income is not chargeable to tax may be illustrated by referring to income from the source mentioned in the third head in section 6, namely, "Income from property". The corresponding computing section is section 9 which says that tax shall be payable on income under this head in respect of bona fide annual value of property. It is conceivable that income actually received from the property in a year may exceed the notional figure. The excess would certainly be liable to be included in total income under section 4. It however, cannot be brought to tax as income under the head "other sources", see Saliently House Estate, Ltd. vs Fry(1). It is an income which cannot be taxed at all though it is included in total income as defined in section 4. In Probhat Chandra Barua vs King Emperor(1) it was no doubt said that section 12 which is the computing section in respect of the residuary head of income, was clear and emphatic and expressly framed so as to make the head of "Other sources" describe a true residuary group embracing within it all sources of income, profits and gains, provided the Act applies to them, that is, provided they are liable to be included in total income under section 4 which deals with income to which the Act applies. We are in full agreement with that observation but we do not think that it affords any support to the contention that all income liable to be included within total, income under section 4 must be brought to tax. The observation must be read keeping in mind the undisputed principle that a source of income cannot be brought under the residuary head if it comes under any of the specific heads, for the Judicial Committee could not have overlooked that principle. If we do that, it will be clear that all that the Judicial Committee said was that all sources of income which do not come under any of the other heads of income can be brought under the residuary head. The words used are "embracing. all sources of income" and not all income. It did not say that an (1) ; (2) 57 I.A. 228. 300 income liable to be included in the total income is chargeable to tax as income under the residuary head if it is not chargeable tinder a specific head under which it normally falls. In Probhat Chandra Barva 's case(1) the Judicial Committee was not concerned with that aspect of the matter; the only question before it was, whether zamindari and certain other income fell under the third head of income from property, as the word 'property ' was understood in the Act. Another aspect of Probhat Chandra Barua 's case(1) requires a mention. The question that there arose, as we have just now said, was, whether the Income tax Act did not impose a tax on the income of a zamindar derived from his zamindari and certain other properties. It was said on behalf of the assessee that the zamindari and the other income being income from property fell under the third head and could be brought to tax only under the corresponding computing section, section 9. It was pointed out that the income could not be charged to tax under that section because it dealt only with income from house property which the income concerned was not. It was then said that the income could not be taxed under the residuary head because it was really income from property and could be taxed only as such. The Judicial Committee did not accept this contention. It took the view that the word 'property ' in the third head "Income from property" had to be interpreted as restricted only to that kind of property which is described in the computing section, section 9 and as that section deals only with house property the income from zamindari and other properties did not fall under the head "Income from property". It, therefore, found no difficulty in holding that the zamindari income was income from the residuary source. We find no support in this case for the view that an income which is admittedly under a specific head can be brought to tax under the residuary head if it cannot be so brought under the cornputing section corresponding to that head. That case only held that zamindari income was not income which fell under the head "Income from property" and that it could never so fall. It provides ,no warranty for the contention that an income from one source may, in certain circumstances, be treated as income from a different source, which is the contention of the Revenue in the present case. We think it right also to observe that if the receipts in the present case could be treated as income from the residuary source, the position would be most anomalous. We have earlier said that if that were so, the placing of an income under this head would depend on the act of the assessee, it would depend on the time when the assessee chose to receive it. That we conceive is not it situation which the Act contemplates. But there is another and stronger reason to show that the Act did not contemplate it. Suppose the assessee had kept his accounts on the mercantile basis. (1) 57 I.A. 228. 301 He would then have been charged to tax on these receipts in the year when the income accrued which must have been a year when he was carrying on his profession as an advocate. It could not then have been said that the receipts should be taken under the head "other sources". If we are to accept the contention of the Revenue, we have to hold that the method of book keeping followed by an assessee would decide under which head a particular income will go. If the Revenue is right, the income of the assessee would go under the fourth head if the method of accounting was mercantile and it would go under the fifth head if the accounting was the cash basis. We are wholly unable to take the view that such can be the position under the Act. The heads of income must be decided from the nature of the income by applying practical notions and not by reference to an assessee 's treatment of income: see Commissioner of Income tax vs Cocanada Radhaswami Bank Ltd.(1). It now remains to see whether section 12 justifies a view contrary to that which we have taken. It lays down the rules for computation of income under the head "Other sources". It says that tax under the head "Income from other sources" shall be payable in respect of income of every kind which may be included in the total income if not included under any of the preceding heads. It seems to us clear that the words "if not included under any of the preceding heads" which refer to the heads considered in sections 7 to 10 refer to income and not to a head of income. section 12, therefore, deals with income which is not included under any of the preceding heads. If the income is so included, it falls outside section 12. Whether an income is included under any of the preceding heads would depend on what kind of income it was. It follows that if the income Is profits and gains of profession, it cannot come under section 12. Section 12 does not say that an income which escapes taxation under a preceding head will be computed under it for chargeability to tax. It only says and this is most important that 'an income shall be chargeable to tax under the head "other sources" if it does not come under any other head of income mentioned in the Act. Section 12 therefore does not assist the contention of the Revenue that professional income which cannot be brought to tax under section 10 may be so brought under section 12. For these reasons we have come to the conclusion that the receipts were not chargeable to tax either under the head of professional income or under the residuary head, It was not said that the receipts might be brought to tax under any other head. In our opinion, therefore, the receipts were not chargeable to tax at all. We accordingly allow these appeals with costs. (1) 3 S.C.R. 619. 302 Bachwat, J. These appeals raise the question whether the professional income of an assessee whose accounts are kept on a cash basis, received by him during his life time after the discontinuance of the profession and after the close of the accounting year in which the profession is discontinued, is assessable to income tax either under section 10 or under section 12 of the Indian Income tax Act, 1922. The assessee was practising as an advocate in the High Court of Bombay till March 1, 1957 when he was appointed a Judge of the High Court at Bombay. His method of accounting was cash, and his accounting year was the Calendar year. The relevant orders of the Income tax Officer suggest that his accounting year was the financial year ending on March 3 1, but it is now the common case of both the assessee and the Revenue that the accounting year was the Calendar year. In the assessment year, 1958 59, the assessee was assessed to income tax in respect of the entire professional income received by him, during the Calendar year including the income received after March 1, 1957. It is not disputed that the assessee was liable to pay tax in respect of the income received by him between March 1, 1957 and December 31, 1957. During the Calendar years, 1958 and 1959, the assessee re ceived the sums of Rs. 30,570 and Rs. 15,240 respectively on account of professional fees for work done by him before March 1, 1957. In the returns for the assessment years, 1959 60 and 196061, the assessee included the aforesaid two sums as his income from profession. By his orders dated May 30, 1960 and October 26, 1960, the Income tax Officer subjected the aforesaid two sums to tax treating them as receipts of fees for professional services rendered in the earlier years and as part of the total income of the assessee. On April 4, 1961, the assessee filed two revision petitions before the Commissioner of Income tax, Bombay City 1, under section 33 A contending that the aforesaid two sums were no part of his total income of the relevant accounting years and were included in his returns through an error and asking for their exclusion from his assessable income for the relevant assessment years. By a common order dated January 29, 1963, the Commissioner of Income tax held that the two sums were assessable on general principles and also on the authority of the decision in Re. B. M. Kamdar(1), and rejected the revision petitions. From this order, the assessee now appeals to this Court by special leave. The first question is whether the two sums were assessable to tax under section 10 of the Indian Income tax Act, 1922. Section 10(1) provides: "The tax shall be payable by an assessee under the head Profits and gains of business, profession or vocation ' in respect of the profits and gains of any business, profession or vocation carried on by him." (1) 303 Section 10 applies to the profits and gains of any business, profession or vocation carried on by the assessee. Considering that the subject matter of charge is income of the previous year, the expression "carried on by him" must mean "carried on by him at any time during the previous year." To attract section 10(1), it is not essential that the assessee should have carried on the profession throughout the entire previous year or at the time when be realised the outstanding professional fees; it is sufficient that he carried on the profession at any time during the accounting year in which he realised his fees, see in re. Kamdar(1). On the other hand, the section does not apply to the profits and gains of any profession which was not carried on by the assessee at any time during the previous year. Our attention was drawn to several decisions of this Court dealing with section 10(2)(viii) and the second proviso to section 10(2)(vii). In Commissioner of Income tax vs Express Newspapers Ltd(1) and Commissioner of Income tax vs Ajax Products Ltd.(1), this Court held that one of the essential conditions of the applicability of the second proviso to section 10(2)(vii) is that during the entire previous year or a part of it the business shall have been carried on by the assessee. In the Express Newspapers Ltd. case(1), at page 259, Subba Rao, J. said: "Under section 10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year. " These observations support the conclusion that the profits and gains of a business or profession are not chargeable under section 10(1), if the assessee did not carry on the business or profession during any part of the previous year. In the instant case, the assessee discontinued his profession as soon as he became a Judge of the Bombay High Court. He could not carry on the profession after he became a Judge. It is not possible to hold that he continued to carry on the profession merely because he continued to realise his outstanding fees. It follows that the assessee did not carry on his profession as an advocate at any time during the Calendar years, 1958 and 1959. The receipts of the outstanding professional fees during 1958 and 1959 were not profits and gains of a profession carried on by the assessee during those years, and were not assessable to tax under section 10(1). Section 13 provides that except where the proviso to that section is applicable, the income for the purposes of section 10 must be computed in accordance with the method of accounting regularly employed. by the assessee. Section 13 is mandatory. In the instant (1) (2) , (3) ; 304 case, as the assessee employed the cash method of accounting and as the proviso to section 133 did not apply, his professional income during 1957 and the previous accounting years had to be computed on the cash basis. The Revenue had no option in the matter. Had the assessee adopted the mercantile method of accounting. the entire income of the assessee arising from his profession before March 1, 1957 would have been included in his assessable income for those years, and no portion of it would have escaped assessment under section 10. But as the assessee adopted the cash method of accounting, the outstanding fees could not be included in the assessment for those years. The question is whether this income now escapes taxation altogether. There is no doubt that by the method of accounting employed by the assessee, he has chosen to treat the receipts in question as income of the accounting years, 1958 and 1959. The Revenue claims that the income was assessable to tax under section 12. On behalf of the assessee, Mr. Palkhiwala submitted that (1) the income from the defunct source of profession, though not assessable under section 10, continued to fall under the head covered by section 10 and the residuary head under section 12 was not attracted, (2) section 12 covers residual heads and not residual receipts, and (3) that if section 12 were applied to this income, the assessee would suffer injustice because the deductions properly allowable under section 10 in respect of the income could not be allowed. On the other ban(], Mr. Sarjoo Prasad appearing on behalf of the Revenue submitted that the receipts in question were part of the total income of the assessee for the relevant accounting years chargeable under section 3 read with sections 2(15) and 4. and as the income was not exempt from tax and as it did not fall under section 10 or any other head, it must be assessed to tax under section 12. In support of his contention, Mr. Sarjoo Prasad relied upon the opinion of Chagla, J. in re. Kamdar(1) at p. 58. By section 3 read with sections 2(15) and 4, income tax is charged for every year in accordance with and subject to the provisions of the Act in respect of the total income of any previous year of the assessee computed in the manner laid down in the Act, including all income, profits and gains from whatever source derived. which accrue or arise or are received or are deemed to accrue, arise or to be received as provided by section 4(1) and which are not exempted under section 4(3). The crucial words in section 4 are "from whatever source derived". The nature of the source does not affect the chargeability of the income. Section 6 sets out the heads of income chargeable to tax. The several heads are dealt with specifically in sections 7, 8, 9, 10 and 12. Income is classified under different heads for the purpose of computing the net income under each head after making suitable deductions. Income, profits and gains from what ever source derived, included in the total income fall under one (1) 305 head or the other, If any part of the total income does not fall under the specific heads under sections 7, 8, 9 and 10, it must fall under the residuary head under section 12. Section 12(1) provides: "The tax shall be payable by an assessee under the head Income from other sources ' in respect of income, profits and gains of every kind which may be included in his total income (if not included under any of the preceding heads). " Income, profits and gains of every kind are covered by section 12, provided two conditions are satisfied, viz., (1) they are not included under any of the preceding heads and (2) they may be included in the total income of an assessee. Any income chargeable under a specific head can be charged only under that head and no part of that income can be charged again under section 12. But any part of the total income of the assessee not assessable under a specific head is assessable under the residuary head covered by section 12. Referring to similar words in section 12(1), as it stood before its amendment in 1939, Lord Russell observed in Probhat Chandra Barua vs The King Emperor(1): "These words appear to their Lordships clear and emphatic, and expressly framed so as to make the sixth head mentioned in section 6 describe a true residuary group embracing within it all the sources of income, profits and gains provided the Act applies to them i.e., provided that they accrue or arise or are received in British India or are deemed to accrue or arise or to be received in British India, as provided by section 4, sub section (1), and are not exempted by virtue of section 4, sub section " Referring to the words "income, profits and gains" in section 12, Lord Russell said in Gopal Saran Narain Shigh vs Income tax Commissioner(1): "The word 'income ' is not limited by the words 'profits ' and 'gains '. Anything which can properly be described as income is taxable under the Act unless specially exempted. " And Sarkar, J. said in Sultan Brothers vs Commissioner of Incometax(1): "Section 12 is the residuary section covering income, profits and gains of every kind not assessable under any of the heads specified earlier. " Section 6 gives the short label of each head, but the actual contents of the several heads are to be found in sections 7, 8, 9, 10 and 12. Take the head "(iii) Income from property" in section 6. Section 9 shows that only income from buildings or lands appurtenant thereto, of which the assessee is the owner, falls under this head. Income from other properties, e.g., land not appurtenant to (1) [1930] L.B. 57 I.A. 228,239. (2) [1915] L.R. 62 I.A. 207,213. (3) , 357: 306 building is outside the purview of this head and fall s under section 12. Again. take the head "(iv) Profits and gains of business, profession or vocation. " Section 10 on its proper construction applies only to the profits and gains of a business, profession or vocation carried on by the assessee during any part of the previous year. Profits and gains of business, profession or vocation of the assessee which was not carried on by him during any part of the previous year being outside the purview of section 10 must necessarily fall under section 1 2. Mr. Palkhiwala conceded that the receipts in question were the income of the assessee. He also admitted that the income was not exempt from tax under sub section (3) of section 4. The income was received by the assessee in the taxable territories during the relevant previous years. The receipts are, therefore, liable to be included in the total income. We have found that this income cannot be included under section 10. It is common case that it cannot be included under any other head. It follows that the income must fall under the residuary head specified in section 12. Section 12 dealing with the residuary head is framed in general terms and in computing the income under this head, requires deduction of any expenditure (not being in the nature of capital expenditure) incurred solely for the purpose of making or earning such income. As the income in the present case falls under section 12, the allowance for the necessary expenditure must necessarily be given under this head and not under section 10. There is no question of the assessee suffering an injustice by not being given the allowances under section 10. He cannot be given the allowances under section 10, as the income does not fall under that section. Counsel rightly submitted that section 12 covers residual heads and not residual receipts. In this connection, he relied upon Salisbury House Estates Ltd. vs Fry(1). That case decided that the various Schedules of the English Income tax Act, 1918 are mutually exclusive, Sch. A must be applied to the class of income falling under it and no pay of this income is chargeable under Sch. This decision received the approval of this Court in United Commercial Bank Ltd. vs The Commissioner of Income tax(2). On the principle of this decision, if a particular income is taxable as income from property under section 9, any residual receipt from the property in excess of the annual value assessed under section 9 cannot be assessed again as residual income under section 12. This principle has no application to the case before us. The relevant professional income of the assessee is not taxable under section 10 or under any other specific head, and it must, therefore, be taxed tinder section 12. This is not a case where the revenue has taxed or can tax the incomeunder section 10 and again seeks to tax the income under section 12. Mr. Palkhiwala next referred us to several English decisions in support of his contention that the receipts of the professional (1) ; (2) ; 307 income after the discontinuance of the profession are not assess a ble to income tax. Rowlatt, J. in Bennett vs Ogston(1) said: "When a trader or a follower of a profession or vocation dies or goes out of business because Mr. Needham is quite right in saying the same observations apply here and there remain to be collected sums owing for goods supplied during the existence of the business or for services rendered by the professional man during the course of his life or his business, there is no question of assessing those receipts to Income Tax; they are the receipts of: the business while it lasted, they are arrears of that business, they represent money which was earned during the life of the business and are taken to be covered by the assessment made during the life of the business, whether that assessment was made on the basis of bookings or on the basis of receipts." These bservations received the approval of the House of Lords in Purchase vs Stainer 's Executors(1) and Carson vs Cheyney 's Executors(1). In ' the last two cases, the Court held that the professional earnings of a deceased individual realised by his executor were not liable to income tax either under Case II or under Cases III and VI of Schedule D of the English Income tax Act, 1918. in Cheyney 's case(1), the professional earner had died in one of the assessment years and part of his earnings had been realised by his executor during the same assessment year. It is remarkable, however, that in Cheyney 's case(1) at p. 265 Lord Reid said: "In my opinion, the ground of judgment in this House in Stainer 's case was that payments which are the fruit of professional activity are only taxable under Case 11 and cannot be taxed under Case III, even when it is no longer possible when they fall due to tax them under Case II, and when looked at by themselves and without regard to their source they would fall within Case Ill. I am not sure that I fully appreciate the reasons for the decision, but I have no doubt that is what was decided, and I am bound by that decision whether I agree with it or not. " The rule in Stainer 's case(1), rests on shaky foundations and has been subjected to criticism even in England. The rule is subject to exceptions in England, and as pointed out by Jenkins, L. J. in Stainer 's case(1) is subject to the application of Rule 18 of the General Rules. The Indian Income tax Act, 1922 is not pair material, the scheme is in many respects different from the scheme of the English Act, and I think that the rule in Stainer 's case(1) is not applicable to the Indian Act. In England, the tax is on the I current year 's income, the Revenue has the option to assess the (1) ,378. (3) (2) 308 income on the accrual basis, and even if it chooses to make an assessment on the cash basis, the entire accrued income might be considered to be covered by the assessment. But under the Indian law, the tax is on the previous year 's income, the Revenue has no option to assess the income from a business or profession on the accrual basis if the accounts of the as are regularly kept on the, cash basis, and the assessment on the cash basis cannot cover the receipts in the subsequent years. Moreover, it is impossible to say under the Indian law that all receipts of outstanding professional fees after the retirement of the assessee from profession escape taxation. Beyond doubt, the receipt of the professional fees in the accounting year during which the assessee carried on the profession is assessable under section 10, though at the time of the receipt he has retired from the profession. The decision in The Commissioner of Income tax, Bombay City 1, Bombay vs Amarchand N. Shroff(1) is entirely distinguish able. In that case, this Court held that the income of a deceased solicitor received by his heirs subsequent to the previous year in which he died was not liable to be assessed to income tax under a. 24B as his income in the hands of his heirs, and apart from section 24B, no assesment can be made in respect of a person after his death. In the instant case, the assessee is alive,. and no question of assessment under section 24B arises, Neither side relied on section 25(1), and, in my opinion, rightly. That sub section gives an option to the Revenue to make an assessment in the year of the discontinuance of the business or profession on the basis of the income of the period between the end of the previous year and the date of the discontinuance in addition to the assessment, if any, made on the basis of the income of the, previous year, The sub section does not preclude the Revenue from making an assessment on the professional income under any other section of the Act. Our attention was drawn to section 176(4) of the Income tax Act, 1961, which provides: "Where any profession is discontinued in any year on account of the cessation of the profession by, or the retirement or death of, the person carrying on the profession, any sum received after the discontinuance shall be deemed to be the income of the recipient and charged to tax accordingly "in the year of receipt, if such sum would have been included in the total income of the aforesaid person had it been received before such discontinuance. " (2) [1963] Supp. I S.C.R. 690. 309 The note on cl. 178 of the Income tax Bill, 1961 suggests that this sub section was passed with a view to give effect to the following recommendations of the Direct Taxes Administration Enquiry Committee in paragraph 7.81 (11) of its Report: "There is no provision in the law at present to assess the income, received after the cessation of practice or retirement or death of the assessees carrying on a profession, like, Solicitors. Advocates, Doctors, Consulting Surveyors. Engineers etc. The law should be amended in such a way that even on the assessee 's cessation of his vocation or retirement from the profession or death income received after such cessation, retirement or death would be taxed. " The Report does not purport to base, its opinion on any judicial decision. The assumption in this Report that there is no provision in the Indian Income tax Act to assess the entire income received after the retirement or death of professional men cannot be wholly correct, because, beyond doubt, the income received after the retirement in an accounting year during any part of which the assessee practiced his profession is assessable under section 10 and the income received after his death by his legal representative during the previous year in which he practised his profession is assessable in the hands of the legal representative under section 24B. Moreover, the Report is silent on the question of the assessment of the outstanding profits of business realised by a trader after the discontinuance of his business. In this case, we are concerned with the interpretation of the Indian Income tax Act, 1922, and the question is whether we can take into account the provision of the later Act in interpreting the earlier Act. In Craies on Statute Law, 6th Edn, p. 146, the law is stated thus: "Except as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts. A later statute may not be referred to interpret the clear terms of an earlier Act which the later act does not amend, even although both Acts are to be construed as one, unless the later Act expressly interprets the earlier Act; but if the earlier Act is ambiguous, the later Act may throw light on it, as where a particular construction of the earlier Act will render the later incorporated Act in. effectual. " This passage is fully supported by the decision of the House of Lords in Kirkness vs John Hudson & Co.(1). In Hariprasad Shivshankar Shukla vs A. D. Divikar(2), this Court gave effect to the (1) [1955] 2 All. R.R. 845. (2) [1957] S.C.R. 121,140. 310 plain meaning of an unamended Act, though on the interpretation given by it a later amendment would become largely unnecessary, and quoted with approval the following passage in the opinion of Lord Atkinson in Ormond Investment Co. Limited vs Betts(1): "An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it. " I do not find any ambiguity in the clear terms of sections 2(15), 3,4,6,10, 12 and 13 of the Indian Income tax Act, 1922 and the later Act cannot be used as an aid to their construction. On the construction of the Indian Income tax Act, 1922, 1 hold that the profession income of an assessee whose accounts were kept on a cash basis received by him during his lifetime after the discontinuance of the profession and after the close of the accounting year in which the profession was discontinued, is assessable to income tax under section 12 of the Act. In the result, the appeals are dismissed. There will be no order as to costs. ORDER In accordance with the Judgment of the majority the appeals are allowed with costs. (1) ,164.

The appellant an advocate who maintained his accounts on the cash system gave up practice when he was elevated to the Bench in 1957. Certain outstanding professional dues were however received by him in the accounting years 1958 and 1959. These receipts were shown by him as income in his return for the assessment years 1959 60 and 1960 61 and were assessed by the Income tax Officer. The appellant then went in revision to the Commissioner of Income tax contending that the said receipts were not income and had been wrongly taxed. The Commissioner having decided against him the appellant came to this Court under article 136 of the Constitution. HELD: (i) The receipts in the present case were clearly the fruits of the assessee 's professional activity and fell under the fourth head of section 6 of the Indian Income tax Act 1922. They were however not chargeable to tax under that head because under the corresponding computing section that is. section 10. an income received by the assessee who kept his accounts on the cash basis in an accounting year in which the profession had not been carried on at all is not chargeable. [297 D F] Commissioner of Income Tax vs Express Newspapers Ltd., , relied on. (ii) The income could not be taxed under section 12 either. Section 12 deals with income which is not included under any other preceding heads covered by sections 7 to 10. If the income is so included, it falls outside section 12. It follows that if, as in the present case, the income is profits and gains of profession it cannot come under section 12. [301 E] The heads of income in section 6 are mutually exclusive and it would be incorrect to say that as the receipts could not be brought to tax under the fourth head they could not fall under that head and must therefore fall under the residuary head 'other sources '. There is no justification for the assumption that an income falling under one head has to be put under another head if it escapes taxation under the computing section corresponding to the former head. [298 A; 300 E F] The character of the income cannot change merely because the assessee received it at a certain time or adopted a certain sYstem of accounting. [301 B] Section 4 does not say that whatever is included in total income must be brought to tax. The income has to be brought under one of the heads mentioned is section 6 and can be charged to tax only if it is so chargeable under the computing section corresponding to L/S5SCI 296 that head. Income which falls under the fourth head can be brought to tax only if it can be so done under the rules of computation laid down in section 10. [298 G 299 B] In re: B, M. Kamdar, , not approved. The United Commercial Bank vs The Commissioner of Income Tax, ; , Salisbury House Estate Ltd., vs Fry. 15 Tax Cases 266 and Commissioner of In tax vs Cocanada Padhaswami Bank Ltd., , relied on. Probh At Chandra Barua vs King Emperor, 57 I.A. 228, distinguished, Per Bachawat J. (dissenting) The receipts in question were chargeable under section 12. Any income Chargeable under a specific head can be charged only under that head, and no part of that income can be charged again under section 12. But any part of a total income of the assessee not me*sable under a specific head is assessable under the residuary head covered by section 12, [305 C] The income in question was not exempt under section 4(3). The receipts were liable to be included in total income under section 4. This income could not be included under section 10 owing to the method of accounting adopted by the assessee. Nor did it fall under any other head. It followed that the income must fall under the residuary head specified in section 12, This was not a case where the Revenue had taxed or could tax the income under s, 10 and again sought to tax the income under a. 12. [306 C. G H]

N: Criminal Appeal No. 368 of 1986. From the Judgment and order dated 11.4.1986 of the Calcutta High Court in Crl . No . 1181 of 1985 . WITH Criminal Appeals Nos. 251 252 of 1986. From the Judgment and order dated 26.7.1975 of the Calcutta High Court in Crl. 222 and 448 of 1985. Dr. Y.S. Chitale and H.K. Puri for the Appellant. Parijat Sinha for the Respondent in Crl. A. No. 368 of 1986. S.K. Kapur, Ranjan Dev and Mrs. Indra Sawhney for the Respondents in Crl. A. No. 251 252 of 1986. Tapas Roy and D.K. Sinha for the State of West Bengal. D.K. Sinha, K.R. Nambiar, Ms. Reba Roy, K.K. Lahitri and Ms Apsi Ditta for the Interveners. The following order of the Court was delivered O R D E R After hearing Shri S.K. Kapoor, learned counsel appearing for respondent No. 1 in Criminal Appeals Nos. 251 252 of 1986 at quite some length, we are not persuaded to take a view different from the one expressed by this Court in the recent judgment in Baldev Krishna Sahi vs Shipping Corporation of India Ltd. & Anr., [ 1987] 4 SCC 361 overruling the judgment of the Calcutta High Court in Amrit Lal Chum vs Devi Ranjan Jha, as to the scope and effect of sub section (1) of section 630 of the . The Court in Baldev Krishna Sahi 's case has placed a beneficent construction on the provisions contained in sub section (1) of section 630 of the Act 785 and according to it the term 'officer or employee ' in sub section (1) of section 630 must be interpreted to mean not only the present officers and employees of a company but also to include the past officers and employees of the Company. It has also taken the view that the words 'any such property ' in cl. (b) thereof qualify the words 'any property of a company ' appearing in cl. As observed in Baldev Krishna Sahi 's case, section 630 of the Act plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment. It is the wrongful withholding of such property, meaning the property of the company after termination of the employment, which is an offence under section 630(l)(b) of the Act. The construction placed by this Court in Baldev Krishna Sahi 's case is the only construction possible. There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section (1) of section 630 of the Act as meaning only the existing officers and employees and not those whose employment have been terminated. The Court in Baldev Krishna Sahi 's case has expressly overruled the judgment of the Calcutta High Court in Amrit Lal Chum vs Devi Ranjan Jha, supra, against which these appeals have been filed and upheld the consistent view to the contrary taken by the High Court of Bombay in a series of cases. [See Harkishin Lakhimal Gidwani vs Achyut Kashinath Wagh, and Govind T. Jagtiani vs Sirajuddin section Kazi, Accordingly, these appeals must succeed and are allowed with costs. The judgment of the High Court allowing the applications under section 482 of the Code of Criminal Procedure, 1973 are set aside. Shri S.K. Kapoor, learned counsel appearing for respondent No. 1 in Criminal Appeals Nos. 251 252 of 1986 and Shri Parijat Sinha, learned counsel for respondent No. 1 in Criminal Appeal No. 368 of 1986 pray for time to vacate the premises in their occupation. We grant the respondents time till June 30, 1988 to vacate the premises subject to their furnishing the usual undertaking in this Court within four weeks from today. If there is a failure on the part of the respondents to comply with these conditions, namely, failure to file the said undertaking and/or to vacate the premises within the time allowed, the cases against them i.e. Complaint Case No. 1053/83 in the Court of IIIrd Additional Judicial Magistrate, Alipore, 24 Paraganas and Complaint Case No. 2788/84 in the Court of Special Divisional Judicial Magistrate, Alipore, 24 Paraganas shall continue. In the event of respondents ' failure to file the undertaking and/or vacate the premises within 786 the time specified, the learned Magistrates shall proceed with the trial of these cases and dispose them of as expeditiously as possible and in any event, not later than October 31, 1988. The intervention application filed by Tata Iron and Steel Company Limited is not pressed. N. P.V. Appeals allowed.

% Section 630 of the empowers the court, on the complaint of the Company, or any creditor or contributory thereof, to punish an officer or employee of such company, by levy of fine, if such officer or employee wrongfully obtains possession of, or having obtained possession, wrongfully withholds or knowingly misapplies, the property of the company, and also order him to deliver up or refund, within a stipulated time, such property or, in default, to suffer imprisonment. In these appeals against the Judgment of the High Court, the question for consideration was as to the scope and interpretation of this provision. E Allowing the appeals, ^ HELD: Section 630 of the plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment. It is the wrongful withholding of such property, meaning the property of the company after termination of the employment, which is an offence under section 630(l) of the Act. [785B C] There is, therefore, no warrant to give a restrictive meaning to the term "officer or employee" appearing in sub section (1) of section 630 of the Act as meaning only the existing officers and employees and not those whose employment has been terminated. [785C D] Baldev Krishna Sahi vs Shipping Corporation of India Ltd. & Anr., [ 1987} 4 SCC 361, followed. H 784 [Time granted to respondents till June 30, 1988 to vacate the premises subject to the furnishing of usual undertaking. In the event of failure to furnish the undertaking and/or vacate the premises within the time stipulated, the cases against the respondents to continue and the trial court to proceed with the trial and dispose them of expeditiously, but not later than 31.10.88.] [785G H; 786A]

ition (Crl.) No. 2989 of 1983. (Under article 32 of the Constitution) R.L. Panjwani, Manoj Saxena and R.D. Upadhaya for the petitioners. The Order of the Court was delivered by CHANDRACHUD, C.J, The question raised in this petition is whether the Government can ask the police not to enter a place of worship, even if criminals are reported to be hiding or harboured therein. It is impossible and undesirable for any Court to issue a general writ of Mandamus to the effect that whenever a criminal is suspected to have taken shelter in a place of worship, the police must enter that place, regardless of the overall situation of law and order. Speaking generally, Courts cannot enforce law and order by issuing general directions without reference to specific instances. The Government has to assess, in the context of the prevailing conditions, the impact of the steps taken to enforce law and order. And, it is the executive which has to take a policy decision as regards the steps to be taken in a given situation, after 903 taking into account the demands of the prevailing situation. We do not commend or suggest that the police should be silent spectators to wanton destruction of life but we cannot, as men of some little experience of law and life, commend that the police must enter places of worship forcibly. While enforcing law and order, the executive cannot be oblivious of the possibility that while solving one problem of law and order, others more acute than the one sought to be solved may arise. That is always a valid and relevant consideration. With these observations, we dismiss this petition filed by two public spirited organisations through their courageous convenor and secretary respectively. M.L.C. Petition dismissed.

HELD: It is the executive which has to take a policy decision as regards the steps to be taken in a given situation, after taking into account the demands of the prevailing situation. It is not that the police should be silent spectators to wanton destruction of life; but the Court cannot commend that the police must enter places of worship forcibly. [902 H; 903 A]

Appeal No. 490 ,of 1962. Appeal by special leave from the judgment and order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal No. 1591 of 1959. Kartar Singh Chawla and Harbans Singh, for the appellants. I. M. Lal and M. R. K. Pillai, for the respondents. March 24, 1964. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a defendants ' appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants. The suit was filed by the respondents for possession of a plot, a house and a Kaur and half share in certain lands as preferential heirs of one Pohla after the death 431 of Pohla 's widow Punjab Kaur on February 7, 1952. The plaintiffs are Mst. Nikko, sister of Pohla and Jarnail Singh, son of Mst. Har Kaur who was another sister of Pohla. The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara 's sons. The following genealogy gives the relationship of the parties: Sualtani : : : : : : Sohela Baghaila : : : : Mara defendant No.1 : : Pir Bux Jaimal Sunder : : died sonless : : and wifeless : : : : : Mohinder Singh Major : : : Singh Pohla Mst. Har Kaur Mst. Nikku defendant defendant (son) (daughter) alias Punjab No.2 No.3 : : Kaur (daughter) : : wife of Santa Shrimati Jarnail son Singh Jat, Punjab of Arjun resident of widow Plaintiff Ayali Kalan, No.2 No.2 Plaintiff No.2 The parties are Jhalli Jats of village Chomon, Tehsil and District Ludhiana. The plaintiffs claimed that the property was non ancestral and according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral and non ancestral properties. It appears that after the death of Panjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole property. He made gifts to his sons of some of the properties and that is why they were joined in the suit. Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here. They claimed that according to the custom applicable to the family, sister and sister 's sons were excluded from inheritance in respect of properties whether ancestral or nonancestral. They however claimed that the property was ancestral and denied the genealogy. The Subordinate Judge, Second Class, Ludhiana framed six issues of which issues No. 2, 3 and 4 alone are important in this appeal. Those issues are: "2. Whether the property is ancestral qua Pohla and Mara?" "3. Whether the question of the nature of the property is material for the decision of tons case?" 432 "4. Whether the plaintiffs are preferential heirs to the estate of Mst. Panjabo widow of Pohla?" The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it. We have not been referred to any portion of this evidence in this appeal. The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral. On the third issue he referred to question No. 52 from the Riwaj i am relating to the settlements of 1882 and 1909 1910 (Exts. and D 2) in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters ' sons never succeed. He, however, held on the authority of Ahmad vs Mohammad and others(1) that since question refers only to ancestral property and that the nature of the property was thus material. On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to non ancestral property the personal law would apply unless special custom was proved. He therefore placed the burden on ,he defendants relying upon Harnam Singh vs Mst. Gurdev Kaur, (2) MSt. Sukhwant Kaur vs section Balwant Singh and others(3) and Mst. Jeo vs Ujagar Singh.(4) As he had already rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit. On appeal the District Judge, Ludhiana remitted three issues to the trial Judge and they were as follows: "Issue No. 4: Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non ancestral left by the Pohla in preference to Mara defendant?" "Issue No. 4A: Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non ancestral property of Pohla deceased?" (1) A.I.R. 1936 Lah. (2) (3) A.I.R. 1951 Simla 242. (4) 433 "Issue No. 4B: If the custom set out by the parties is not proved, whether the plaintiffs are preferential heirs to Mara defendant under personal law applicable to the parties?" On these issues the report of the Subordinate Judge, First Class, Ludhiana was against the contention of the defendants. The learned District Judge held, in agreement with the Subordinate Judge, that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sisters ' sons in respect of non ancestral property. He referred to Exts. 9, 10, 12 and 13 which were judgments in other cases as evidencing the contrary. He accordingly dismissed the appeal. The Second appeal filed thereafter was dismissed summarily by the High Court. The first question to decide is whether these lands are ancestral or non ancestral. The concurrent finding of the two courts below is that none of the properties in dispute is ancestral. The High Court prima facie saw no reason to differ from any of the conclusions of the courts below. It is contended on the strength of a Kafiat of Thulla Malla prepared at the settlement of 1882 that this land came into possession of one Sekhu who was admittedly a common ancestor in the family and the property, which is now in dispute, must be regarded as ancestral. It is contended that the finding is vitiated because the two courts below did not read this Kafiat alongwith the extracts from the Records of rights of the years 1882 and 1909 1910 in which the names of Jaimal and Sunder, sons of Baghela, and of Pir Bux son of Sohila are shown as persons in enjoyment of half shares in these lands. It is argued that the lands in suit are thus proved to be ancestral as they belonged to Sekhu the common ancestor and the Riwaj i am as disclosed in question No. 52 applies to the case. It appears, however, from the Kafiat as well as the Record of Rights that these lands were once abandoned and when people came back Sekhu got possession of some lands but in addition to these Sekhu 's descendants had acquired the share of one Dalpat in the Thulla and subsequently the entire estate of another holder, namely, Maidas was purchased by Jaimal, Sunder and Sohila. This shows that the lands in dispute are not entirely ancestral but are made up of lands which may be described as ancestral and non ancestral. Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and nonancestral, portions cannot be separated they must be regarded 434 as non ancestral, unless it is shown which are ancestral and which are not. This was laid down by the Privy Council in Avtar Singh vs Thakar Singh(1). It was held by Mr. Justice Kapur (as he then was) in Indar Singh vs Gulzara Singh and others(2) basing himself upon Saif ul Rahman vs Mohammand Ali Khan(3) and Jagtar Singh vs Raghbir Singh(4) that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent. Once these conclusions are reached, it is quite obvious that the decision of the District Judge not to apply the answer to question No. 52 to non ancestral land was right. It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established. In fact, it was not denied at the hearing. It is, however, contended that there are decisions to show that the right of the collaterals was recognised in respect of even non ancestral land to the exclusion of sisters and their sons. No ruling from the Law Reports has been brought to our notice. Some cases from the Ambala and Amritsar Dis tricts are cited but those obviously cannot be any authority, because, as is well known, custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana. It has been ruled in this Court that paragraph 24 of Rattingan 's Digest which excludes sisters from inheritance from non ancestral property is too widely stated. (See Ujagar Singh vs Mst. Jeo(5) and (Waryam Singh and Others vs Smt. Sukhi and another) (Civil Appeal No. 452 of 1961 decided on April 23, 1963). The learned District Judge cited some instances in which the sisters and sisters ' sons were allowed to succeed in preference to collaterals. One of the documents filed by the defendants in the suit (Ext. D 6) also supports the contention of the respondents. In this view of the matter it cannot be said that the application of the personal law to the family by the courts below was erroneous. It is contended lastly that the rulings only show that collaterals of 5th degree are excluded and there is no case showing that a collateral of 4th degree was excluded. If personal law applies, as it does, a collateral of the 4th degree is also excluded. In our judgment this appeal must fail and is accordingly dismissed with costs. Appeal dismissed. (1) 35 I.A. 206. (2)A.I.R. (3) I.L.R (4) I.L.R. (5) (1959 Supp. 2 S.C.R. 781.

Claiming inheritance to the properties of one P a Jhalli Jat of Ludhiana Tehsil, the respondents, who were P 's sister and sister 's son filed a suit against the appellants P 's collaterals. The Subordinate Judge decreed the suit and an appeal to the District Judge was dismissed. They held that the lands in suit were not ancestral and that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sister 's son in respect of non ancestral property. An appeal to the High Court was also dismissed. Held: (i) Where lands are so mixed up that the ancestral and non ancestral portions cannot be separated they must be regarded as non ancestral unless it is shown which are ancestral and which are not. Avtar Singh vs Thakar Singh, 35 I.A. 206, applied. Land ceases to be ancestral if it comes into the hands of any owner otherwise than by descent. Inder Singh vs Gulzara Singh, A.I.R, 1951 Punj. 345, Saif ulRahman vs Mohammad Ali Khan, I.L.R. and Jagtar Singh vs Raghbir Singh, I.L.R. , referred to. (ii) The application of the personal law to the family by the courts below was correct and paragraph 24 of Rattingan 's Digest which excludes sisters from inheritance from non ancestral property is too widely stated. Ujagar Singh vs Mst. Jeo, [1959] Supp. 2 S.C.R. 781 and Waryam Singh vs Smt. Sukhi, CA No. 452/61 decided on 23 4 1963 (non reportable) referred to.

N: Criminal Appeal No. 273 of 1979. Appeal by Special Leave from the Judgment and Order dated 14 8 1978 of the Punjab and Haryana High Court in Crl. A. No. 234/78 and Murder Reference No. 3/78. H. K. Puri, Amicus Curiae for the Appellant. R. section Sodhi and Hardev Singh for the Respondent. The following Judgments were delivered: SARKARIA, J. While reserving my own opinion on the various question raised in this case including the one with regard to the scope, amplification and application of Section 354(3) of the Code of Criminal Procedure, 1973, I would, in agreement with my learned brother, direct that the records of this case be submitted to the Hon 'ble the Chief Justice, for constituting a larger Bench which would resolve the doubts, difficulties and inconsistencies pointed out by my learned brother in his order, particularly, in its last paragraph. KAILASAM, J. This special leave petition is filed by Bachan Singh son of Saudagar Singh from jail against the conviction and sentence imposed on him by the High Court of Punjab and Haryana. This Court ordered notice to the State and heard the counsel for the petitioner and the State and granted special leave. The appellant was tried by the Sessions Judge, Ferozepur, on three charges of causing the death of three persons Desa Singh the son and Durga Bai and Veeran Bai daughter of Hukam Singh and causing grievous injuries to Vidya Bai, another daughter of Hukam Singh, at about 12 midnight between the 4th and 5th July, 1977, in the courtyard of the house of Hukam Singh. The learned Judge found the appellant guilty of the three charges under section 302, I.P.C. and sentenced him to death on each count. He also found him guilty under section 326, I.P.C., for causing grievous hurt with a sharp cutting weapon to Vidya Bai and sentenced him to three years ' rigorous imprisonment and a fine of Rs. 500/ . Against the convictions and sentences passed the appellant preferred Criminal Appeal No. 234 of 1978 to the High Court. The appeal along with the Reference No. 3 of 1978 made by the trial Judge for confirmation of sentence of death were heard together by the High Court. The High Court rejected the appeal and confirmed the convictions and sentences passed on the appellant. The case for the prosecution briefly is that the appellant Bachan Singh was convicted under section 302 I.P.C. for the murder of his wife 1197 and sentenced to imprisonment for life. After undergoing the term of imprisonment he was released. After the release he lived with his cousin(?) Hukam Singh P. VV. 5 for about six months. Hukam Singh 's wife and son objected to the appellant living in their house. A few days prior to the occurrence Hukam Singh and his wife went to Nainital in connection with the marriage of their son Desa Singh. On the night of the occurrence 4th July, 1977 Desa Singh son of Hukam Singh, Durga Bai, Veeran Bai and Vidya Bai the daughters of Hukam Singh were in the house. After taking their meals the, three daughters slept in the inner courtyard, Durgabai in one cot and Veeran Bai and Vidya Bai in another cot near each other. Desa Singh, the son of Hukam Singh, and the appellant slept in the outer courtyard on two separate cots near each other. At about midnight Vidya Bai P.W. 2 was awakened by the alarm and saw the appellant inflicting Kulhari (axe) blow on the face of her sister Veeran Bai. When Vidya Bai tried to get up the appellant gave Kulhari blow on her face and ear. She was unable to speak and fell unconscious. Diwan Singh P.W. 12 who was sleeping at a distance of 3/4 Karms from the cots of Desa Singh and the appellant also woke up on hearing a shriek. He saw the appellant striking Desa Singh with a Kulhari. He raised an alarm and Gulab Singh P.W. 3 who was sleeping at a distance of SO feet from the cot of Desa Singh woke up and saw the appellant hitting Desa Singh on the neck with a Kulhari. On an alarm being raised by the witnesses the appellant threw the Kulhari in the courtyard and ran, away. Gulab Singh and Diwan Singh P.Ws. 3 and 12 gave a chase to the appellant but could not apprehend him. Soon after Kanshi Singh P.W. 4 and others arrived at the place of occurrence and heard from the witnesses the detail, of the occurrence. A tractor was brought in which Durga Bai, Veeran Bai and Vidya were taken to the hospital at Fazilka. The Doctor who examined the dead bodies and the injured person gave the necessary certificates. He also sent information to the A.S.I. P.W. 13 who went to, the hospital and recorded the statement from P.W. 12 on the basis of which the F.I.R. was recorded at the police station at 4 20 a.m. On 5th July, 1977. The police officer conducted the inquest and preceded with his investigation. The courts below found that the medical evidence fully corroborated the testimony of the injured eye witness P.W. 2 and two other eye witnesses P.Ws. 3 and 12 and found that the prosecution had established its case beyond reasonable doubt. The trial court and the High Court on a consideration of the evidence found that P.W. 2 Vidya Bai the daughter of Hukam Singh 1198 who was sleeping along with her sisters in the house and suffered serious injuries, saw the attack by the appellant when she woke up. There is evidence that it was a moonlit night and there was sufficient light by which the assailant would have been identified. The trial court accepted the evidence of P.W. 2. The High Court also found that the evidence of P.W. 2 is trustworthy. Both the courts below also relied on the testimony of the other two eye witnesses P.Ws. 3 and 12. P.W. 3 Gulab Singh was sleeping at a distance of 50 Karmas and got up after hearing the alarm and rushed to the scene. P.W. 12 was sleeping at a distance of 15 feet of Desa Singh. The trial court as well as the High Court accepted the testimony of the two eye witnesses S P.Ws. 3 and 12. On a consideration of the evidence of the eye witnesses the High Court observed that the "evidence provided by the eye witnesses is of very high order in the case and was rightly accepted by the learned trial Judge. " We have no hesitation in agreeing with the concurrent findings of the courts below and holding that the prosecution has proved beyond all reasonable doubt that the appellant caused the death of the three deceased Desa Singh, Durga Bai and Veeran Bai and grievous hurt to Vidya Bai P.W. 2. Regarding the sentence, the High Court observed "The objection by Desa Singh, his mother and other family members was of a triffing nature on which the appellant acted in a very cruel manner. The victims had no cause to suspect ' the intentions of the appellant and went to sleep. Taking advantages of the situation, when the victims could not defend, the appellant killed three and seriously wounded the fourth. It was by sheer luck that Vidya Bai survived. The manner in which the appellant perpetrated these crimes by killing these persons in their sleep is heinous. Under these circumstances, the case of the appellant for reduction of the sentence cannot be considered and in our view the sentence awarded by the learned trial Judge was the only appropriate sentence. " The crime is diabolic and very cruel. Hukam Singh, a cousin, accommodated the appellant in spite of the protests of his wife and son. While enjoying the hospitality at the dead of night when nobody had any suspicion the appellant committed in the most dastardly manner the crime. Desa Singh was sleeping in a cot by the side of the appellant. The appellant at the dead of night while the others were sleeping unsuspectedly hacked three persons to death. It is only providential that the third daughter Vidya Bai escaped. The crime in our view is one of the foulest that could be imagined and we are in entire agreement with the courts below about their assessment of the gravity of the crime the only question for consideration is whether 1199 the facts found would be special reasons for awarding the death sentence as required under sec. 354(3) of the Code of Criminal Procedure 1973. Section 302 I.P.C. and sub sec. (3) of section 354 of the Cr. P.G 1973 deal with the imposition of death sentence. Section 302 I.P.C. provides: "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. " Sub sec. (3) of sec. 354 of the Code of Cr. Procedure, 1973, enacts. "When the conviction is for an offence punishable With death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the Judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. " Before the amendment of sec. 367(S) Cr. P.C. by the Criminal Procedure Code (Amendment) Act, 1955 (Act XXVI of 1955) which came into force on 1st January, 1965, on a conviction for an offence punishable with death if the Court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. Section 367(5) of the Code of Criminal Procedure before its amendment by Act 26 of 1955 provided that "if the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall, in its judgment state the reasons why sentence of death was not passed. " This sub section was construed before the Amendment Act, Act 26 of 1955 as meaning that the extreme sentence is the normal sentence and the mitigated sentence is the exception. In Dalip Singh vs State of Punjab,(1) it was held that in a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty. In Vadivelu Thevar vs The State of Madras,(2) this Court expressed its view that the question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate (1) A.I.R.1953 S.C.364 (2) A.I.R.1957 S.C.6I4. 1200 the enormity of the crime. If the Court is satisfied that there are such mitigating, circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law. These two cases were rendered in relation to offences which were committed before the Criminal Procedure Code Amendment Act 26 of 1955 was enacted. The law therefore prior to the amendment was that unless there are extenuating circumstances the punishment for murder should be death and not imprisonment for life. By the Amendment Act 26 of 1955 a new sub section, sub section (5), was substituted for the former sub section (S) by Act 26 of 1955 which does not contain the provision making it incumbent for a Judge to record his reasons for imposing a lesser penalty. After the amendment which omitted the provision requiring the recording of reasons for imposing the lesser penalty, the Court is not under a statutory duty to record the reasons. Still as the Courts have to impose one of the two penalties, namely death or imprisonment for life, the Courts will have to exercise their judicial discretion in deciding which of the two penalties should be imposed. The result is that after the amendment though the Court is not required to record the reasons for imposing the lesser penalty it was bound to exercise its discretion judicially. To show that the discretion has been judicially exercised, reasons are given for imposing the particular sentence. This makes it necessary for the court to give its reasons for imposing the particular sentence though by the Amending Act the court was not required to` give reasons for not imposing any punishment other than death. The effect of the amendment has been stated by this Court in Raghubir Singh vs State of U.P.,( ') that after the amendment of section 367(S), Criminal Procedure Code, by Act 26 of 1955 the discretion of the court in deciding whether to impose the sentence of death or of imprisonment for life has become wider. By the Code of Criminal Procedure, 1973 (Act 2 of 1974) subsection (3) to section 354 was introduced regarding the contents of the judgment relating to imposition of a sentence of death or imprisonment for life or imprisonment for a term of years. Sub sec. (3) which deals with the conviction for an offence punishable with death or in the alternative with imprisonment for life or for a term of years in sentencing a person on conviction for such an offence the judgment is required to state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence. When the court in its discretion imposes either a sentence (1) [1972] 3 S.C.C.79 1201 of death or imprisonment for life or for imprisonment for a term of years, the Court is required to record reasons for imposing one or the other sentence which it can legally impose. As the Court has a discretion to award a sentence of death or imprisonment for life or imprisonment for a term of years and as the discretion is very wide the law requires that reasons shall be stated for awarding one or other of the sentences. In the case of an offence under sec. 132, I.P.C., the punishment provided for is death or imprisonment for life or imprisonment for 10 years and fine. There are other offences like the one under section 131 I.P.C. which is punishable with imprisonment for life or imprisonment for 10 years and fine. Sections 121(a), 122, 125, 128, 130, 131 IPC and other sections provide for the punishment of imprisonment for life or imprisonment for a term of years. In such cases under section 354(3) the Court is required to state reasons why one or other of the sentences is imposed. In the case of offences punishable with death the sub section requires that special reasons for imposing such sentence, should be given. This requirement makes it clear that where the punishment provided for is death or imprisonment for life the sentence that should be imposed as of rule should be one cf imprisonment for life. But if the offence is of such a grave nature that the court thinks the higher of the penalties, namely the death sentence, should be imposed special reasons should be given. Thus while the legislature retained the imposition of death sentence it laid down that if the court awarded the death sentence it should Furnish special reasons. In Chapter 27 which relates to 'Judgments ' there are other sections which require that reasons should be given for imposing or not imposing a particular sentence. Sub section (4) to section 354 requires that when the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence. Such reasons need not be recorded if the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provision of Cr. P.C. Section 361 requires that when the court could have dealt with (a) an accused person under section 360 or under the provisions of the Probation of offenders Act, 1958, or (b) a youthful offender under the . Or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. This section also requires special reasons to be given if the court has not dealt 1 with the accused under the provisions mentioned The object of requiring the reasons to be given regarding the sentence could be 1202 found in the Law Commission 's Report and the Report of the Joint Parliamentary Committee. The Law Commission in Vol. I, 35th Report on the Capital Punishment expressed that a considerable body of opinion is in favour of a provision requiring tile Court to state its reasons for imposing the punishment either of death or imprisonment for life. The Commission was of the view that this would be a safeguard to ensure that the lower courts examine the case as elaborately from the point of view of sentence as from the point of view of guilt and that it would provide good material at the time when a recommendation for mercy is to be made by the court or a petition for mercy is considered and that it would increase the confidence of the people in courts by showing that the discretion is judicially exercised. It would also facilitate the task of High Court in appeal or in proceedings for confirmation in respect of the sentence (where the sentence awarded is that of death), or in proceedings in revision for enhancement of the sentence (where the sentence awarded is one of imprisonment for life). In its 41st Report on the Cr. P.C. the Law Commission recommending the amendment also observed that there were certain offences for which the Penal Code prescribes the punishment as death or in the alternative life imprisonment or imprisonment for a term of years and therefore the amendment recommended should cover these cases also. The Joint Committee of Parliament added that a sentence of death is the extreme penalty of law and it is but fair that when a court awards, that sentence in a case where the alternative sentence of imprisonment for life is also available, it should give special reasons in support of the sentence. For giving effect to the recommendation of the Law Commission and the Joint Committee of Parliament sub section (3) to section 354 was amended in the present form. The object the amendment therefore is to insist on the lower courts to examine the case as elaborately from the point of view of sentence as from the point cf view of guilt and state its reasons for imposing the sentence which would help the High Court in discharging its functions particularly in confirming a sentence of death or enhancing a sentence of imprisonment for life to death. This object is further sought to be achieved by the introduction of sub section 2 to section 235 which provides an opportunity of hearing the accused on the question of sentence. The provision requiring special reasons for awarding death sentence makes it also clear that the normal sentence when punishment of death or imprisonment for life could be awarded is only imprisonment for life and if the court imposes death sentence it should give special reasons. 1203 The development of law regarding the imposition of death sentence call be summarised as follows. While before the Amending Act 26 of 1955 was introduced the normal sentence for an offence of murder was death and that the lesser sentence is the exception, after the introduction of sub section (5) to section 367 by Act 26 of 1955 it was not obligatory for the Court to state the reasons as to why the sentence of death was not passed. By the amendment the discretion of the Court in deciding whether to impose a sentence of death or imprisonment for life became wider. The court was bound to exercise its judicial discretion in awarding one or the other of the sentences. By the introduction of section 354(3) the normal sentence is the lesser sentence of imprisonment for life and if the sentence of death is to be awarded special reasons will have to be recorded. In other words, the court before imposing a sentence of death should be satisfied that the offence is of such a nature that the extreme penalty is called for. The decisions rendered by this Court after the introduction of the amendment to S.354(3) by Act 2 of 1974 have reiterated this position. In Balwant Singh vs State of Punjab(1) this Court summing up the position observed that under section 354(3) of the Cr. P.C., 1973, the Court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. This view was reiterated by this Court in Ambaram vs The State of Madhya Pradesh.(2) In Sarveshwar Prasad Sharma vs State of Madhya Pradesh(3) it was observed that this Court has in several cases indicated guidelines in this problem area of life and death as a result of judicial verdict but none of these guidelines can be cut and dry nor exhaustive and each case will depend upon the totality of the facts and circumstances and other matters revealed. The validity of imposition of death sentence was challenged in the ground that the sentence puts an end to all Fundamental Rights guaranteed by clauses (a) to (g) of sub clause (1) of article 19 of the Constitution and therefore the law with regard to capital sentence is unreasonable and not in the interest of the general public. It was further contended that the discretion invested in the Judges to impose capital punishment is not based on any standard or policy required by the Legislature for imposing capital punishment in preference to (1) [1976]2 S.C.R. 684 (2) [1976]4 S.C.C. 298 (3) [1978]1 S.C.R. 560 1204 imprisonment for life. Further it was submitted that the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by article 14 of the Constitution. Lastly, it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life and therefore article 21 is violated. A Constitution Bench of this Court in Jagmohan Singh vs The State of U.P.( ') rejected all these contentions. It was held that the deprivation of life is constitutionally permissible if that is done according to procedure established by law and that it cannot be held that capital sentence is per se unreasonable or not in the public interest. It was further held that the impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter cf sentence is liable to be corrected by superior Courts. The exercise of judicial discretion on well recognised principles is, in the final: analysis, the safest possible safeguard for the accused. The challenge under article 14 was also negatived on the ground that the facts and circumstances of a crime are widely different, and, since a decision of the court as regards punishment is dependent upon a consideration of all the facts and circumstances, there is hardly any ground for a challenge under article 14. The Court also negatived the plea that the provisions of law do not provide a procedure for trial of factors which are crucial for making the choice between the capital penalty and imprisonment for life. The Court rejected all the challenges against the award of death sentence on the ground of violation of the provisions of the Constitution. It also upheld the investment of wide discretion in the matter of fixing the degree of punishment on the Judges as the exercise of judicial discretion on well recognised principles is the safest possible safeguard for the accused. The Constitution Bench delivered its judgment on the 3rd October, 1972. Subsequently amendment to the Code of Criminal Procedure, 1973, (Act 2 of 1974) came into force on 1st April, 1974. The only change by the new Act is the introduction of section 367 (S) of the Criminal Procedure Code which provides that the judgement shall state the special reasons where a sentence of death is awarded for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years. The requirement that the courts should state the special reasons for awarding the death sentence would indicate that the normal sentence for an offence punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered (1) ; 1205 that sentence of death is appropriate on the particular facts of the case It should give special reasons. Apart from the emphasis that the normal sentence is imprisonment for life and that special reasons should be given for awarding the death sentence there is no further alteration in the law relating to awarding of the death penalty. As already noticed the effect of the amendment was considered by this Court in , and ; (supra) and it was held that the awarding of sentence other than the sentence of death is the general rule now only special reasons, that is to say, special facts and circumstances in a given case will warrant the passing of the death sentence. A recent decision of this Court Rajendra Prasad 's case in Cr. Nos. 512, 511 and 513 of 1978 was delivered on 9th February, 1979.(1) The decision by the majority was delivered by Krishna Iyer J. held that "special reasons" necessary for imposing the death penalty must relate not to the crime as such but to the criminal. It further held that death sentence can be awarded only in certain restricted categories The tests that are prescribed are to find out whether the murderer holds out a terrible and continuing threat to social security in the setting of a developing country and poses a grave peril to society 's survival. The other circumstances which would justify imposition of death sentence are when an economic offender intentionally mixes poison in drugs, professionally or wilfully adulterates intoxicating substances injuriously, and knowingly or intentionally causes death for the sake of private profit or when a murderous band of armed dacoits intentionally derail a train and large number of people die in consequence or when the style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death. Likewise when a murderer is so hardened and so blood thirsty that within the prison and without, he makes no bones about killing others or carries on a prosperous business in cadavers, then he becomes a candidate for death sentence. I have read through the judgment of the Court with utmost care. The decision is in many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh 's case. The Court has proceeded to make law as regards the conditions that are necessary for imposition of a sentence of death under section 302 I.P.C. It has proceeded to canalisation of sentencing discretion and has embarked on evolving working rules on punishment bearing in mind the enlightened flexibility of social sensibility. In doing so I feel the court has exceeded its powers conferred on it by law. (1) ; 1206 To substantiate my statement, I proceed to give a few extracts from the judgment. At the outset of the judgment it is stated that the precise issue before it was "the canalisation of the sentencing discretion in a competing situation. .Therefore this jurisprudential exploration, within the framework of section 302 I.P.C., has become necessitous, both because the awesome 'either/or ' of the Section spells out no specific indicators and law in this fatal area cannot afford to be conjectural". "The flame of life cannot flicker uncertain; and so section 302 I.P.C. must be invested with pragmatic concreteness that inhibits ad hominem responses of individual judges and is in penal conformance with constitutional norms and world conscience." "Within the dichotomous frame work of section 302 I.P.C., upheld in Jagmohan Singh, we have to evolve working rules of punishment bearing the markings of enlightened flexibility and societal sensibility.". . "Therefore, it is no heresay to imbibe and inject the social philosophy of the Constitution into the Penal Code to resolve the tension between the Past and the Present.". . "That is the essay we undertake here". "But if legislative undertaking is not in sight judges who have to implement the code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to possess the flavour of law making". "This Court 's tryst with the Constitution obligates it to lay down general rules, not a complete directory, which will lend predictability to the law vis a vis the community and guide the judiciary in such a grim verdict as choice between life and death.". . "Therefore, until Parliament speaks, the court cannot be silent.". . "This Court must extricate, until Parliament legislates, the death sentence sector from judicial subjectivism and consequent uncertainty.". "Having stated the area and object of investigation we address ourselves to this grave penological issue purely as judges deciding a legal problem, putting aside vie vs, philosophical or criminological, one holds. But law, in this area, cannot go it alone; and cross fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals and, above all constitutional currents, cannot be eschewed. " The above are few of the passages in the "prolix and diffuse" judgment as the learned Judge has chosen to call it. The passages clearly indicate that the Court in the absence of legislative undertaking has embarked on law making as in its view the Judges cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to possess the flavour of law making, and that until Parliament speaks the Court 1207 cannot be silent. With utmost respect I feel that the courts have no such power to legislate and to frame rules to guide the infliction of death penalty. The duty of the court so far as enacted law is concerned, is to interpret and construe the provisions of the enactment. By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed. The courts must take it absolutely for granted that the legislature has said what is meant alld meant what it has said. Judges are not at liberty to add or to take FRS or modify the letter of the law simply because they have Cr reason to believe the true sentence legis is not completely or correctly expressed by it. (Salmod on Jurisprudence, 11th Ed. by Glanville Williams, p. 153). The Constitution and the laws bind every court in India and that though the courts are free to interpret they are not free to overlook or disregard the Constitution and the laws. As held in Young vs Bristol Aeroplane Co. Ltd.(l) the Court is not entitled to disregard the statutory provisions and to follow a decision of its own when that provision was not present in its mind. It is equally beyond the functions of a Court to evolve working rules for imposition of death sentence bearing the markings of enlightened flexibility and social sensibility or to make law by cross fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals and, above all, constitutional currents. I am of the view that it is the function of the Parliament to frame laws consistent with the needs of the society. If the grounds for award of a sentence of death has to be more specifically stated than that it is found in the Indian Penal Code and the Cr. P.C., it is for the Parliament to do so. Various legislative measures were introduced but were withdrawn from time to time. At present there is a Bill before the Parliament. It is for the Parliament to clarify the circumstances under which a sentence of death could be awarded. It is for the court to administer the law as it stands. In awarding sentence of death, the Court has to take into consideration the various aspects regarding the crime and the person that committed the crime and pass an appropriate sentence and if it is death sentence to give special reasons as required by the Cr. If in deciding a case on particular facts a principle is stated it may be binding as a precedent. If the Courts resort to rule making it will not be binding as precedent. If the Courts are to embark on rule making the question arises whether [1] [1947] 1 K.B.718, 1208 the responsibility can be undertaken by a bench of 3 Judges with a majority of 2 to 1. Is it permissible for another bench to proceed to make laws and prescribe an entirely different sets of rules ? There is no machinery by which the Court could ascertain the views of the various cross sections of the society which is a prerequisite before any law making is resorted to. The Court has embarked on framing rules prescribing conditions for imposition of death sentence taking into account "cross fertilisation from sociology, history, cultural anthropology and current national perils and developmental goals, and above all, constitutional currents". So far as constitutional currents are concerned the Constitution Bench has upheld the validity of awarding of the death sentence. The Court has proceeded on the basis that the earlier decisions of this Court have taken into account only the crime and not the criminal. The emphasis according to the judgment should be on the criminal and not on the crime. The mode of sentencing as envisaged in the Penal Code and the Cr. P.C. requires that every fact that is relevant to the determination of the sentence including the crime, the criminal and other environmental circumstances will have to be taken into account. The view of the learned Judge that in awarding a sentence the criminal is more important than the crime is not warranted by the law as it stands today. I will now refer to various points dealt with in the judgment which are contrary to the decision of the constitutional Bench. Justice Krishna Iyer says: "The main focus of our judgment is on this poignant gap in 'human rights jurisprudence ' within the limits of the Penal Code, impregnated by the Constitution. To put it pithily, a world order voicing the worth of the human person, a cultural legacy charged with compassion, an interpretative liberation from colonial callousness lo life and liberty, a concern for social justice as setting the sights of individual justice, interest with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14, 19 and 21. " The challenge to the award of the death sentence as violative of Articles 19, 14 and 21 was repelled by the Constitution Bench by holding that the death sentence is a permissible punishment and that deprivation of life is constitutionally permissible if that is according to procedure established by law. Regarding laying down standards in imposing the punishment the Court observed that the impossibility of laying down standards is at the very core of criminal law as administered in India which invests the Judges with a very wide diseretion in the matter of fixing the degree of punishment and that 1209 this discretion in the matter of sentence is liable to be corrected by superior Courts. It was held that the exercise of judicial discretion on well recognised principles is in the final analysis, the safest possible safeguard for the accused. Justice Krishna Iyer would comment on the observations of the Constitution Bench above quoted as follows: "The acceptance of the invulnerability of discretionary power does not end the` journey: it inaugurates the search for those `well recognised principles ' Palekar, J. speaks of in the Jagmohan case. Incidental observations without concentration on the sentencing criteria are not the ratio of the decision. Judgments are not Bible for every line to be venerated," with respect I am unable to agree with the characterization of Palekar J 's judgment as "incidental observations without concentration on the sentencing criteria". At p. 559 of the Reports Palekar J. Observes: In India this onerous duty is cast upon Judges and for more than a century the judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion m the matter of sentence is, as already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. " After disapproving laying down of standards the learned Judge proceeded "The exercise of judicial discretion on well recognised, principles is, in the final analysis, the safest possible safeguard for the accused." (Emphasis supplied) The learned Judge quoted with approval the view of this Court in Budhan Chowdhary vs State of Bihar(1) which is as follows: "The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection unless there is shown to be present in it an element of intentional and purposeful discrimination. Further, the discretion of judicial officers is not arbitrary and the law pro vides for revision by superior courts of orders passed by the subordinate courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals. " Palekar, J. continued "Crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely (1) ; 21 409SCI/79 1210 different and since a decision of the court as regards punishment is dependent upon a consideration of all the facts, and circumstances, there is hardly any ground for challenge under Article 14. " At page 560 of the reports, Palekar, J, explains the procedure that is followed by the Courts which enables to bring into focus all the circumstances that are relevant to be taken into account in awarding the sentence. On a reading of the judgment of the Constitution Bench I regard my inability to share the view of Krishna Iyer J. that Palekar J 's observations are incidental and without concentration. It may be noted that the laying down of the standards which was deprecated is being attempted in this decision. Krishna Iyer J. would state "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in article 19(2) to (6)". This view again is inconsistent with the law laid down by the Constitution Bench which has held that deprivation of life is constitutionally permissible if that is done according to procedure established by law. Krishna Iyer J. has observed that "no Code can rise higher than the Constitution and the Penal Code can survive only if it pays homage to the suprema lex. The only correct approach is to read into section 302 I.P.C. and section 354(3) Cr. P.C., the human rights and human trends in the Constitution. So examined, the right to life and to fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled," the only change after the Constitution Bench delivered its judgment is the introduction of section 354(3) which requires special reasons to be given if the court is to award the death sentence. If without the restriction of stating sufficient reasons death sentence could be constitutionally awarded under the I.P.C. and Cr. P.C. as it stood before the amendment, it is difficult to perceive how by requiring special reasons to be given the amended section would be unconstitutional unless the "sentencing sector is made most restrictive and least vagarious". Krishna lyer J. has held that "such extra ordinary grounds alone constitutionally qualify as 'special reasons ' as leave no option to the court but to execute the offender if State and society are to survive. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing or pathetic the situation, unless the inherent testimony oozing from that act is irresistible that the murderous appetite of the convict is too chronic arid deadly that ordered life in a given locality or society or in prison itself would be gone if this man were now or later to be at large. If he is an irredeemable murderer, like a blood thirsty tiger, he has to quit his terrestrial tenancy. " The Constitution Bench dealing with the 1211 award of death sentence observed. "But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country, society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social mal adjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society. " After referring to the Law Commission 's Report the Court observed: "A very responsible body has come to the conclusion after considering all the relevant factors. On the conclusions thus offered to us, it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest. " I find it difficult to reconcile the law stated by the Constitution Bench with the view expressed by Krishna Iyer J. The judgment delivered by Krishna Iyer J. for the Court and the minority judgment of Justice A. P. Sen have dealt at considerable length with various aspects and desirability or otherwise of imposing a sentence of death. Tile controversy over capital punishment is not new. For several centuries the debate is going on. I am conscious that it is a highly controversial subject on which much can be said on both sides. Fortunately, for the Judges it is neither necessary nor desirable to subscribe to one of the two views. All that the Judges are expected to do is to administer the law as it stands. In fact, if I am strong believer of abolition of death sentence or supporter of 'life fol. life ' and 'tooth for tooth ' doctrine I would have excused myself from deciding a case involving confirmation of death sentence. Justice Krishna Iyer has not concealed his abhorrence at the infliction of death sentence. He pleads that death sentence should be abolished. He has expressed his view in unmistakable terms: "Every sombre dawn a human being is hanged by the legal process, the flag of human justice shall be hung half mast". Again "The right to life and to fundamental freedoms is deprived when he is hanged to death, his dignity is defiled when his neck is noosed and strangled". . "The Indian cultural current also counts and so does our spiritual chemistry, based on divinity in everyone, catalysed by the Budha Gandhi compassion". "This axiom is a vote against 'death ' and hope in 'life '. " I have great respect for the views of the learned Judge. He is strongly espousing a cause but I feel embarrassed when I am required to follow his views for I consider it is my solemn duty to administer the law of the land as it stands. According to my conception my duty is to administer the law as it stands. It is not for me lo say what the law should be. If I am satisfied that the trial Judge and the 1212 High Court have given special reasons as required under the law it is my duty to confirm the sentence of death. Vide observations of this Court in Ram Narain and ors. vs State of U.P.(1) quoted with approval in Jagmohan 's case. I do not feel it necessary to refer to the various points dealt With by Krishna Iyer J. in his long and learned 'essay '. I have quoted in extenso from his judgment and also from the judgment of the Constitution Bench in order to show that the two views are irreconcilable and that I am bound to follow the law laid down by the Constitution Bench. With respect I find myself in complete agreement with the views expressed by the Constitution Bench. I am therefore unable to follow the decision of the Bench. I have discussed the general principles laid down in Rajendra Prasad 's case regarding the circumstances that are necessary for the imposition of the death sentence. Apart from being unable to agree with the guidelines prescribed, I am of the view that the general principles laid down are not the ratio decidendi of the case. The courts are not bound to follow them. Halsbury 's Laws of England (3rd Ed. 22 at p. 796) explains what ratio decidendi is. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another court, though they may have some merely persuasive efficacy. Decisions upon matters of fact are not binding on any other court. This Court has held that precedents which enunciate rules of law form the foundation of administration of justice under our system. (Tribhuvandas vs Ratilal).(2) It has also been held in Amritsar Municipality vs Hazara Singh(3) that the decisions of even the highest court on questions of fact cannot be cited as precedents. Lord Halsbury in Quinn vs Leathem(4) said that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in (1) A. I. R. (2) ; Bom. L. R. 73. (3) A. 1. R. (4) 1901 A. at p. 506 1213 which such expressions arc to be found. The learned Judge proceeds To observe ". a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. The courts are not bound by the observations in decisions beyond the point actually decided. The courts can say "We cannot know that the House of Lords would carry this determination further than they have carried it". (per Best C.J. in Fletcher vs Lord Sondes.(l) Applying the principles above quoted, I will now proceed to find out what are the points decided in the case and to what extent it will be binding on courts. In Rajendra Prasad 's case the three appeals in which death sentences were imposed came up before the Court for consideration of the question whether the death sentence awarded should be confirmed or not. After appreciation of the facts of the case the Court came to the unanimous conclusion that the concerned accused have been found guilty of the offence of murder and confirmed the conviction. Regarding the imposition of the death sentence the majority was of the view that there were no sufficient reasons for imposing the extreme penalty while the minority differed from that conclusion. The principle that can be derived in the case is that on the facts and circumstances established in the case there are not 'sufficient reasons ' for imposing the death sentence. Only to this limited extent if at all is the decision binding on the courts. It is common knowledge that the facts are rarely similar in two cases. The root of the doctrine of precedent is that alike cases must be decided alike. Only then it is possible to ensure that the court bound by a previous case decides the new case in the same way as the other court would have decided it. It is all a question of probabilities, but the probability that a court will decide a new case in the same way as would the court which decided one of the cases cited becomes less and less as the differences between the facts of the two cases increase. As every judgment will have to be read as applicable to the particular facts proved will refer to the facts found in Rajendra Prasad 's case. The accused in Rajendra Prasad 's case a youngman after some years served in prison, was released on Gandhi Jayanti Day. Some minor incident ignited his latent feud and he stabbed Ram Bharosey and his friend Mansukh several times and the latter succumbed. He was sentenced to death by the Sessions Court which was confirmed by the High Court. This Court applying the canons which it had laid down came to the conclusion that as nothing on record suggested that Rajendra Prasad was beyond redemption and the record does not (1) [1826] 3 Bing. 501 at p. 560 1214 hint that such an attempt was made inside the prison they did not see any special reason to hang him out of corporeal existence. As pointed out earlier I am unable to subscribe to the canons laid down in the case. The utmost to which this case can be considered as an authority is that if in similar circumstances when a person 's latent feud gets ignited and stabs two persons several times it would not furnish special reasons for inflicting the extreme penalty. In the second case relating to Kunjukunju the accused cut to death the innocent wife and the immaculate kids in the secrecy of night. The trial court as well as the High Court found it was a deliberate and cold blooded act performed with considerable brutality. The majority expressed its opinion that if the crime alone was the criterion the sentence was proper but if the criminal was the target it was not proper. The Cr. P.C. requires the courts to take into account the circumstances in which the crime was committed, the particulars about the criminal and all relevant circumstances relating to the commission of the crime by the criminal. The trial court is required to give reasons and they are to be scrutinised by the High Court on a reference to it for confirmation of the death sentence. The High Court also has to satisfy itself that there arc special reasons for inflicting the extreme penalty. The view of the majority that the test should be whether Janardanan is a social security risk, altogether beyond salvage by therapeutic life sentence is neither in accordance with the requirements of the Cr. P.C. nor law laid down by this Court. The decisions of this Court insist not only on a consideration of the criminal but also the nature of the crime and all other relevant circumstances. As the view expressed in the case is not in conformity with the decisions of this court it cannot be followed as a precedent. At the most the decision may be taken as authority that in similar circumstances the cutting to death of the innocent wife and the immaculate kids in the secrecy of the night may not amount to special reasons as required under the Cr. In the third appeal the appellant flung the vessels over the division of which the wrangle arose, went inside the house, emerged armed, picked up all altercation eventuating the young man (whose age was around 18 or 20) stabbing to death three members of the other branch of the family. He chased and killed, excited by the perverted sense of injustice at the partition. The majority was of the view that it is illegal to award capital punishment without considering the correctional possibilities inside the prison. The court was of the view that although the crime was attended with extraordinary cruelty, the accused being young and malleable are and their reasonable prospect of reformation and absence of any conclusive circumstance that the assailant is a habitual 1215 murderer or given to chronic violence these catena of circumstances bearing on the offender call for the lesser sentence. Here again it is difficult to agree with the test applied for it is not in conformity with the decisions of this Court or the requirements of the law. If at all it may be an authority only for the proposition that under identical circumstances the stabbing of three persons by a young man in an altercation when he was excited by a perverted sense of injustice would not be special reasons for awarding the extreme penalty. In the case before us the facts are not identical with any of the cases in the appeals. The appellant was released after undergoing a term of imprisonment for the murder of his wife. After release he lived with his cousin Hukam Singh for about six months. The wife and son objected. On the night of the occurrence when he was sleeping with Desa Singh son of Hukam Singh in the outer courtyard and three daughters of Hukam Singh in the inner courtyard at about midnight the petitioner got up, inflicted fatal injuries on the son Desa Singh and the two daughters Durga Bai and Veeran Bai and caused grievous injuries to Vidya Bai while they were sleeping. 'the trial court as well as the High Court on a consideration of the entire facts regarding the crime and the criminal came to the conclusion that the appellant acted in a very cruel manner. The victims had no cause to suspect the intentions of the petitioner and went to sleep. Taking advantage of the situation, when the victims could not defend, the appellant killed three and seriously wounded the fourth. The courts below rightly characterised the offence as heinous and in the circumstances of the case they were of the view that the only appropriate sentence is the extreme penalty. I have no hesitation in agreeing with that conclusion. The facts of the case may have some resemblance to Kunjukunju case in that the accused in that case cut his innocent wife and the kids under the secrecy of the night. But the other circumstances namely his cold calculated and deliberate murder of innocent children of Hukam Singh who had given shelter to him when they were sleeping discloses that the crime is an extremely brutal and heinous one calling for imposition of death sentence I agree with the trial Court and the High Court and find 'special reasons ' required for imposition of death has been clearly made out.

^ HELD: (Per Sarkaria, J.) The records of this case be submitted to the Hon 'ble Chief Justice for C constituting a larger Bench which would resolve the doubts, difficulties and inconsistencies pointed out by Kailasam J. in his order, particularly in its last paragraph. (Per Kailasam, J.) 1. Before the amendment of Section 367(5) of the Code of Criminal Procedure by the Criminal Procedure Code (Amendment) Act 1955 (Act 26 of 1955) was introduced, the normal sentence for an offence of murder was death and the lesser sentence was the exception. After the introduction of the amendment it was not obligatory for the court to state the reasons as to why the sentence of death was not passed. By the amendment the discretion of the court in deciding whether to impose a sentence of death or imprisonment for life became wider. The court was bound to exercise its judicial discretion in awarding one or the other of the sentences. By the introduction of Section 354(3) of the Code of Criminal Procedure 1973, the normal sentence is the lesser sentence of imprisonment for life and if the sentence of death is to be awarded, special reasons will have to be recorded. In other words, the court, before imposing a sentence of death, should be satisfied that the offence is of such a nature that the extreme penalty is called for. [1203A C] 2. In a number of decisions, this court has reiterated the position that under section 354(3) of the 1973 Code, the court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated. [1203D] Balwant Singh vs State of Punjab [1976] 2 S.C.R. 684; Ambaram vs The State of Madhya Pradesh ; and Sarveshwar Prasad Sharma vs Slate of Madhya Pradesh [1978] I S.C.R. 560 referred to. In Jagmohan Singh vs State of U.P. ; in which the constitutional validity of imposition of death sentence was challenged, this Court held that the deprivation of life is constitutionally permissible if that is done according to the procedure established by law and that it cannot be held that capital sentence is per se unreasonable and not in the public interest. It was also held that the Judges are invested with very wide discretion in the matter of fixing the degree of punishment and that discretion in the matter of sentence is liable 20 409SCI/79 1194 to be corrected by superior courts, that exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. [1204C D] 4. Section 367(5) of the Criminal Procedure Code which came into force on April 1, 1974, after the judgment in Jagmohan Singh 's case, provides that the judgment shall state the special reasons where a sentence of death is award ed for an offence punishable with death or in the alternative with imprisonments life or imprisonment for a term of years. The requirement that courts should state the special reasons for awarding the death sentence would indicate that the normal sentence for an offence punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered that sentence of death is appropriate on the particular facts of the case it should give special reasons. [1204 G H] 5. But in Rajendra Prasad vs State of U.P. ; , the majority of a Division Bench of this Court held that "special reasons" necessary for imposing the death penalty must relate not to the crime as such but to the criminal. The death sentence can be awarded only in certain restricted categories where a crime holds out a durable And continuing threat to social security in the setting of a developing country and poses a grave peril to society 's survival and when an economic offender intentionally mixes poison in drugs and knowingly and intentionally causes death for the sake of private profit and so on. The decision is in many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh 's case. The court in this case has proceeded to make law as regards the conditions that are necessary for imposition of a sentence of death under section 302 I.P.C. and to canalisation of sentencing discretion and has embarked on evolving working rules on punishment bearing in mind the enlightened flexibility of social sensibility. In doing so the Court has exceeded its power conferred on it by law. Courts have no power to legislate and to frame rules to guide the infliction of death penalty. [1205C F] 6. So far as the enacted law is concerned, the duty of the court is to interpret and construe the provisions of the enactment. Courts must take it absolutely for granted that the Legislature has said what it meant and meant what it has said. Judges are not at liberty to add or to take from or modify the letter of the law simply because they have reason to believe the true sentence legis is not completely or correctly expressed by it. Though the courts are free to interpret, they are not free to overlook or disregard the constitution and the laws. [1207B D] 7. It is for the court to administer the law as it stands. In awarding sentence or death, the court has to take into consideration the various aspects regarding a crime and the reason for committing the crime and pass the appropriate sentence, and if it is death sentence, to give reasons as required by the Code of Criminal Procedure. If in deciding a case on particular facts a principle is stated, it would be binding as a precedent. If courts resort to rule making, it will not be binding as a precedent. If the courts are to embark on rule making the question arises whether the responsibility can be undertaken by a bench of three Judges with majority of 2: 1. There is no machinery by which the court could ascertain the views of the various cross sections of the society, which is a pre requisite before any law making is resorted to. 1195 Rajendra Prasad 's ease the court embarked on framing rules prescribing conditions for the imposition of death sentence. The view of the majority that in awarding a sentence the criminal is more important than the crime is not warranted by the law as it stands today. The general principles laid down in Rajendra Prasad 's case are not the ratio decidendi of the case. The enunciation of the reasons or the principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi ascertained on a consideration of the judgment in relation to the subject matter of the decision which alone bas the force of law and which, when it is clear what It was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another court, though they may have merely persuasive efficacy. Decisions upon matters of facts are not binding on any other court [1207G H; 1202D F] Tribhuvandas vs Ratilal ; = 70 Bom. L. R. 73; Amritsar Municipality vs Hazara Singh A.I.R. ; and Quinn vs Leatham 1901 A.C. 495 at p. 506; referred to. In Rajendra Prasad 's case the conclusion of the majority was that as nothing on record suggested that the accused was beyond redemption and since the record did not hint that such an attempt was made inside the prison there was no special reason to award death sentence. The utmost to which this case can be considered as an authority is that if in similar circumstances when a person stabs two persons several times it would not furnish special reasons for inflicting the death penalty. In the second case (Kunjukunju) the majority was of the view that the test should be whether the accused was a social security risk altogether beyond salvage by therapeutic life sentence was neither in accordance with the requirements of the Code of Criminal Procedure nor law laid down by the Constitution Bench. Therefore, it cannot be followed as a precedent. Similarly, in the third case (Dubey 's case) also the majority view that it would be illegal to award capital punishment without considering the correctional possibilities inside the prison and that the accused being young and of malleable age and other circumstances bearing on the offender called for the lesser sentence is not in conformity with the decisions of this Court or the requirements of the law. [1213H; 1214A H] 9. In the instant case the appellant was released after undergoing a term of imprisonment for the murder of his wife. After release he lived with his cousin. When his cousin 's son and wife objected to his stay with the family he inflicted a fatal injury on the son and two daughters of his cousin when they were asleep and caused grievous injury on another daughter The courts below came to the conclusion that the appellant acted in a very cruel manner. They have rightly characterised the offence as heinous and held that the only appropriate sentence was the extreme penalty of death. The trial court and the High Court were right in their conclusions. [1215 C E] [Rajendra Prasad 's case cannot be treated as a binding precedent yet as it is a decision of a division bench of this Court. The papers were directed to be placed before the Hon 'ble the Chief Justice for constituting a larger bench to decide the case.]

Civil Appeals Nos.159 and 160 of 1958. Appeals by special leave from the Award dated September 4, 1958, of the Industrial Tribunal, Bombay, in Reference (IT) Nos. 138 and 35 of 1958. N. A. Palkhivala, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellant. C. L. Dudhia and K. L. Hathi, for respondents No. 1 and 2. 1959. October 16. The Judgment of the Court was delivered by WANCHOO J. These two appeals by special leave arise out of two references made by the Government of Bombay in connection with a dispute between the appellant company and two sets of its workmen, namely, clerical staff and staff other than clerical. The clerical staff had raised four questions which were referred to the Industrial Tribunal, Bombay for adjudication. of these, only two points survive in the present appeal, namely, retirement age and gratuity. The non clerical staff had raised two questions of which only one relating to gratuity arises before us. It appears that the appellant company is an all India concern but the major part of its business is concentrated in Calcutta. The number of non clerical staff outside Calcutta is very small as compared to the 53 non clerical staff in Calcutta while the clerical staff outside Calcutta is much less than the clerical staff in Culcutta. The company had a gratuity scheme in force which applied to both clerical and non clerical staff, though there were differences in the scale of payment depending upon whether the basic salary drawn by workmen other than operatives was more than Rs. 100 or less. In case of operatives, there was a uniform scale equal to the scale for workmen other than operatives drawing less than Rs. 100 per mensem. The clerical and non clerical staff in Bombay raised disputes and their main contention was that the scale fixed by the scheme in force was low and should be raised. As for the retirement age, the clerical staff claimed that it should be raised from 55 years to 60. The case of the appellant company before the tribunal was that as the large majority of the staff both clerical and non clerical was in Calcutta and as the gratuity scheme and the retirement age were enforced by virtue of an agreement arrived at between the appellant company and its workmen both clerical and others in Calcutta who are a large majority of its total workmen, they should not be changed at the instance of a small minority of workmen both clerical and others in Bombay. The tribunal did not accept this contention and raised the age of retirement from 55 years to 60. It also made changes in the gratuity scheme by which the scale was raised and made uniform both for clerical staff and others. Thereupon the appellant applied for and obtained special leave from this Court; and that is how the matter has come up before us. Shri Palkhivala appearing for the appellant has raised only two points before us, relating to the raising of the retirement age and the change in the scale of gratuity, and we shall confine ourselves to these two points only. It is conceded by him that the Industrial Tribunal has jurisdiction to order the changes which it has ordered. But his contention is that though the jurisdiction may be there, the tribunal should take into account the special position of an all India concern and should not make changes particularly at the 54 instance of a small minority of workmen as that would lead to industrial unrest elsewhere. He further contends that the scale of gratuity and the age of retirement are matters which are independent of local conditions and therefore should be uniform thought India in concerns which have an all India character. He points out that the conditions of service in the appellant company are uniform throughout India and were arrived at by agreement with the unions of workmen at Calcutta where the large majority of the workmen are employed, and in these special circumstances, the tribunal at Bombay should not have made any changes in the retiring age or in the gratuity scheme at the instance of the small minority of workmen in Bombay. There is no doubt that in the case of an all India concern it would be advisable to have uniform conditions of service throughout India and if uniform conditions prevail in any such concern they should not be lightly changed. At the same time it cannot be forgotten that industrial adjudication is based, in this country at least, on what is known as industry cumregion basis and cases may arise where it may be necessary in following this principle to make changes even where the conditions of service of an all India concern are uniform. Besides, however desirable uniformity may be in the case of all India concerns, the tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned. If therefore any scheme, which may be uniformity in force throughout India in the case of an all India concern, appears to be unfair and not in accord with the prevailing conditions in such matters, it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions in such matters, particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place out of the many where the all India concern carries on business. Before we come to consider the two questions raised before us, we may as well point out that the 55 scale of gratuity and the retirement age were originally fixed by an agreement arrived at in 1956, between the appellant company and its workmen in Calcutta who form a large majority. That agreement was for a period of two years ending with December, 31, 1957. Thereafter it was replaced by another agreement also for two years beginning from 1st January, 1958. In that agreement it was specifically provided that no further major issues would be raised excepting those relating to medical aid, retirement age, and retirement benefits. It is clear therefore that even the workmen in Calcutta had reserved the right to raise a dispute with respect to retirement age and gratuity, if necessary. The reason for this is that the references out of which those appeals have arisen were pending before the tribunal in Bombay and the unions in Calcutta wished to await the decision of the Bombay tribunal before finally agreeing to continue the rules relating to retirement age and gratuity. The appellant company also agreed to make this reservation in the said agreement arrived at between it and the unions in Calcutta. Therefore, strictly speaking, it cannot be said in this case that there was a final agreement in force with respect to these two matters between the appellant and large majority of its workmen in September, 1958 when the Bombay Tribunal gave its award. In any case the Bombay Tribunal was bound to go into the merits of the matter with respect to these two items, namely, retirement age and gratuity, keeping in mind the all India character of the concern and the previous agreement of 1956, and this is what the tribunal has actually done. We shall first take the question of retirement age. The tribunal found that retirement age was fixed between 55 years and 60 in various concerns in Bombay. It was also of opinion that 55 years was too low an age to be fixed for retirement for the clerical staff and that the trend in all the awards had in recent times been to fix it at 60 years. It, therefore, ordered that so far as the clerical staff was concerned retirement age should be fixed at 60 years instead 56 of 55. We may in this connection refer to a recent decision of this Court in Guest Keen, Williams (Private) Limited, Calcutta vs P. J. Sterling and Others (1), where the age of superannuation of employees in service before the Standing Orders came into force, in that concern was fixed at 60 years. In these circumstances if the tribunal thought that it would be fair to fix 60 years as the age of retirement for clerical staff in spite of the fact that in the agreement of 1956 the retirement age was fixed at 55 years, it cannot be said that the tribunal 's order was not in accord with the prevailing conditions in many concerns in that region. In these circumstances we are of opinion that no interference is called for in this matter. We now come to the question of gratuity. The gratuity scheme in force in the appellant company on the basis of the agreement of 1956, provided for threequarters of one month 's average basic salary for each completed year of continuous service for staff other than operatives drawing up to Rs. 100 per menses and thereafter half a month 's average basic salary for each year. It also provided three weeks ' average basic wages for each completed year of continuous service for operatives. Three years service was the minimum period for eligibility to gratuity under special circumstances like death, physical and mental incapacity and 15 years service in all other cases. There was also a provision for "deducting some amount in lieu of provident fund credited by the company in 1941 in respect of service prior to 1st July, 1941. The tribunal was of the opinion that the scheme was not adequate and contained features which were not usual in other prosperous concerns it pointed out that the scale of gratuity for clerks was on a lower basis than for operatives and that this was against the general conditions of things prevailing in that region. It further pointed out that the clerical and the supervisory staff had a higher standard of living, and had to meet heavier expenses of education of their children who get employment at a late age as compared to operatives. It was, therefore, of opinion that a uniform scale of gratuity should be fixed for all (1) ; 57 including those getting wages above Rs. 100 per menses. It also pointed out that the requirement of a minimum service of three years in case of death and physical and mental incapacity was another unusual feature of this scheme and held that it should be changed. It was further of opinion that the usual provision in such schemes was a scale of one month 's basic salary for each completed year of continuous service in case of death, physical and mental incapacity and after 15 years ' continuous service and that some gratuity at a lower scale was provided usually even in case of termination of service before the completion of 15 years ' service. It therefore provided for half a month 's basic salary for each completed year of continuous service after 5 years but upto ten years and three fourths of basic monthly salary for each year of completed service after ten years but less than fifteen years continuous service and one month 's basic salary for each year for the rest. Finally, it took into account the fact that there was a supplementary gratuity scheme in force in the company with respect to the employees in the employ of the company from before September 1, 1946, and with respect to them it provided that those employees should either opt for the scheme as framed by it or continue in the gratuity scheme of the company along with the supplementary gratuity scheme. It appears therefore from the gratuity scheme finally sanctioned by the tribunal that it removed those features from the scheme in force in the appellant company which were unusual and unfair and not in consonance with the prevailing conditions for such schemes in that region. In these circumstances we are of opinion that the tribunal was not bound merely because this is an all India concern to refrain from altering the gratuity scheme which in its opinion had certain unusual features and was not in accord with the prevailing conditions in that region. The appellant 's contention therefore on this head also fails. The appeals are hereby dismissed with one set of costs.

The appellant company was an all India concern and carried on the major part of its business in Calcutta. Its clerical and non clerical staff in Bombay raised disputes relating to gratuity and age of retirement and contended that the scale of gratuity for both the clerical and non clerical staff provided by the existing scheme of the company was low and should be raised and that the age of retirement for the clerical staff should be raised from 55 to 60. The company resisted the claim on the ground that the existing scheme having been enforced on the basis of an agreement between the company and the large majority of its staff, both clerical and non clerical, working in Calcutta, the same could not be changed at the instance of a small minority. The tribunal rejected this contention and raised the age of retirement to 60. It also raised the scale of gratuity and made it uniform for the clerical and non clerical staff. The appellant reiterated its contention in this Court. Held, that although it was advisable for an all India concern to have uniform conditions of service 'throughout the country, that were not to be lightly changed, industrial adjudication in 52 India being based on an industry cum region basis, cases might arise where it would be necessary to change the uniform scheme so that it might accord with the prevailing conditions in the region where the Industrial Tribunal functioned, in order to ensure fair conditions of service. Consequently, in the instant case, where the Industrial Tribunal found that the existing scheme was neither adequate nor in accord with the prevailing conditions in the region, it was not bound to refrain from altering either the age of retirement or the gratuity scheme on the ground the appellant 's concern was an all India one. Nor could the decision of the Tribunal to raise the age of retirement of the clerical staff to 60 be said to be an improper one. Guest, Keen, Williams (Private) Limited, Calcutta vs P. J. Sterling and Others, ; referred to.

Appeals Nos. 396 to 398 and 419 to 421 of 1959, and 152 of 1960. Appeals by special leave from the judgment and order dated November 5, 1958, of the Punjab High Court in First Appeals from Orders Nos. 42 to 44, 60 to 62 and 55 of 1955 respectively. M. C. Setalvad, Attorney General for India, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellants (in C. As. 396 to 398 of 59) and Respondent No. 2 (in C. As. 419 to 421 of 59 and 152 of 60). A. V. Viswanatha Sastri and G. C. Mathur, for the appellant (In C. As. 419 to 421 of 59), Respondent No. 1 (In C. As. 396 to 398 of 59) and Respondent No. 3 (In C. A. No. 152 of 60). G. C. Mathur, for the appellant (In C. A. No. 1.52 of 60). Gopal Singh and D. Gupta, for Respondent No. 2 (In C. As. 396 to 398 of 59) and Respondent No. 1 (In C. As. 419 of 59 and 152 of 60). February 2. The Judgment of the Court was delivered by 679 GAJEMDRAGADKAR, J. This is a group of seven appeals all of which arise from the same land acquisition proceedings in respect of which the Punjab Government originally issued a notification under section 4 of the Land Acquisition Act, 1894, on March 23, 1948. By this notification the State Government declared its intention to acquire land in the Ambala District for the construction of the new Capital for East Pun ab. No action was, however, taken in pursuance of this notification. Meanwhile the Punjab Legislature passed the East Punjab Requisition of Immovable Property (Temporary Powers) Act, 48 of 1948. Under the provisions of this Act the Government requisitioned the land in question for the purpose of resettling the persons who were likely to be evicted from their fands as a result of the construction of the new Capital. The said land was actually acquired on May 20,1951. This land forms part of a Jagir known as "Singh Purian " and comprises the areas of villages Mataur, Dhirpur, Saneta and Giddarpur in the District of Ambala. It appears that these villages originally formed part of the area covered by the Cls Sutlej States. section Amrao Singh was entered as owner of the land thus acquired. His wife is Sardarani Gurdial Kaur and his son is Satinder Singh. The estate of Amrao Singh was at the relevant time being managed by the Court of Wards. Pursuant to the provisions of the Act compensation was assessed by the estate officer and was accordingly offered by the State Government to the Court of Wards. The Court of Wards agreed to the amount of compensation thus offered and Amrao Singh himself did not object to it. Satinder Singh, however, was not willing to accept the said compensation and he raised several objections contending that it was wholly inadequate. He also objected to the compensation being paid either to the Court of Wards or to his father Amrao Singh, and in support of this contention he urged that since the estate once formed part of Cis Sutlej States, Amrao Singh was entitled only to its usufruct for his life and had no right to alienate or otherwise deal with its corpus. Satinder Singh 's plea was that after the 87 680 amount of compensation was finally determined it should be deposited in Government Securities or alternatively a part of it should be paid to him as compensation for the land of his reversionary rights. This plea applied to the three villages of Mataur, Saneta and Giddarpur. In regard to the village of Dhirpur, Amrao Singh 's wife Sardarani Gurdial Kaur claimed that she was in possession of the said village as it was charged for the payment of her maintenance by a compromise decree passed in her favour and against her husband Amrao Singh. She therefore claimed for herself the entire amount of compensation. Thus the contest about the apportionment of the compensation amount took a triangular form. At this stage it would be convenient to refer to the relevant provisions of the statute under which the present proceedings have been taken. In 1948 the relevant Punjab statute was East Punjab Act, 48 of 1948. Section 2 of the said Act deals with the requisitioning of property, and section 3 empowers the State Government to acquire requisitioned properties. Section 5 prescribes the principles according to which compensation had to be paid in regard to acquired properties. Section 5(e) provides that the arbitrator, in making his award, shall have regard to the provisions of sub section (1) of section 23 of the Land Acquisition Act, 1894 (1 of 1894) so far as the same can be made applicable. This Act was followed by the Punjab Requisitioning of Immovable Property (Amendment and Validation) Act, 1951 (President 's Act No. 2 of 1951). By section 5 of this Act section 5 of the earlier Act was amended, inter alia, by adding one provision. This provision provides that where any property is acquired in connection with the new Capital of the State of Punjab compensation may be paid whether by agreement or by award of the arbitrator, either in money or in kind or partly in money and partly in kind, and where there is no person competent to alienate the property, or there is a person with limited interest in such property, or there is any dispute as to the persons entitled to receive the compensation or as to the apportionment thereof, the arbitrator shall make an award in such a manner or 681 make an arrangement in such a way as may be equitable having regard to. the interests of the persons concerned; in other words, the principle of equitable apportionment which had been recognised by section 32 of the Land Acquisition Act of 1894 has in effect been added by this amending Act. In 1953 the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953 (XI of 1953), came into force. Section 24 of this Act repeals the two earlier Acts of 1948 and 1951, and after this Act came into force it was the provisions of this Act that governed the proceedings relating to the requisitioning, and acquisition of immovable properties in Punjab. The equitable principle which was inserted in the Act of 1948 by the amending Act of 1951 has been retained in the present Act under section 8 (3). Section 23 (1) of this Act validates requisitions and acquisitions of properties there specified, while sub section (2) of the said section provides, inter alia, that acquisition of immovable property purporting to have been made before the commencement of this Act shall be deemed for all purposes to have been validly made as if the provisions of the said enactment or order had been included and enacted in this section, and this section had beenin force on and from the date of the acquisition. It has been held by a Full Bench of the Punjab High Court in Colonel His Highness Raja Sir Harindar Singh Brar Bans Bahadur, Ruler, Faridkot State vs The State of Punjab (1) that compensation for property acquired under the Land Acquisition Act, 1894 or under the Punjab Act of 1948 must be paid in accordance with the principles set out in those Acts and not in accordance with the principles set out in the later Act of 1953. This position is not disputed by either party in the present proceedings. Thus it is common ground that for determining the amount of compensation and its apportionment amongst the rival claimants the provisions of the relevant Act of 1948 are applicable though the proceedings were held under the relevant provisions of the later Act of 1953. In fact, the appointment of the arbitrator who conducted the proceedings (1) 682 in the present case was made by the State Government under section 8(1)(b) of the Act of 1953. We have already noticed that the provisions of section 8 (3) of this Act were included by an amendment in the earlier Act of 1948 by the amending Act of 1951. Before the arbitrator the acquisition proceedings were dealt with in four different cases, each one being related to the lands in one of the four villages in question. On the contentions raised by the parties the arbitrator first considered two preliminary issues. They were: (1) Is Satinder Singh competent to object to the amount of compensation awarded in the case, and (2) Is the appointment of the arbitrator invalid on account of the agreement between the State and the Court of Wards about the amount of compensation payable by the State to the Court of Wards. It appears that Amrao Singh contended that his son Satinder Singh had no locus standi in the matter, and that since he and the Court of Wards had agreed to the amount of compensation offered by the State the arbitrator had no jurisdiction to hold any enquiry on the claim put forward by Satinder Singh. The arbitrator, however, rejected Amrao Singh 's pleas, and held that he was entitled and bound to hold the proceedings and to consider the merits of the pleas raised by Satinder Singh. The arbitrator then proceeded to examine the merits of the rival contentions. He found that the property in suit was a part of Cis Sutlej States and so Amrao Singh had only a limited interest in it and had no right to alienate it. As a result of this conclusion the arbitrator held that Satinder Singh, who was the next heir, was entitled to contest the amount of compensation and was also entitled to claim a share in the distribution of the amount. In regard to Dhirpur land he held that Sardarani Gurdial Kaur was entitled to retain the possession of the village for her maintenance under a compromise decree and that both Amrao Singh and Satinder Singh were bound by the said decree. In the result the arbitrator determined the amount of compensation and directed that the entire amount of compensation in regard to Dhirpur 683 should be invested in Government Securities in the name of the holder of Manauli Estate with a charge in favour of Gurdial Kaur which would entitle her to its annual profits in lieu of maintenance. He also directed that on the death of Gurdial Kaur the amount should be divided half and half between the then holder of the Estate and the next heir or heirs taken together. In regard to the lands in the three other villages the arbitrator directed that the amount of compensation determined by him should be paid in cash, 3/4ths to Amrao Singh and 1/4th to the next sole heir Satinder Singh. The amount originally offered by the Government and ultimately awarded by the arbitrator were as follows: Village Govt. Offer Award Mataur (Plus Rs. 93,309.00 Rs. 1,82,813.00 15% acquisi tion charges) Saneta Rs. 42,179.00 Rs. 55,377.00 Giddarpur Rs. 15,726.00 Rs. 27,640.00 Dhirpur Rs. 1,17,912.00Rs. 2,27,860.00 It would thus be seen that the contest made by Satinder Singh in respect of the amount of compensation originally offered by the Government substantially succeeded inasmuch as the total amount offered was increased by the arbitrator by Rs. 2,24,564/ . The order thus passed by the arbitrator was recorded by him in the four cases tried before him in respect of the four villages. These orders became the subject matter of several appeals in the Punjab High Court. The State of Punjab preferred four appeals 67 to 70 of 1955; Satinder Singh preferred three appeals 42 to 44 of 1955; Amrao Singh preferred four appeals 59 to 62 of 1955; and Sardarani Gurdial Kaur preferred Appeal No. 55 of 1955. In its appeal the State urged before the High Court that Satinder Singh was not competent to object to the compensation offered by the State and so the proceedings held before the arbitrator were invalid. It was also urged alternatively that Amrao Singh and Sardarani Gurdial Kaur were not entitled to compensation at the higher rates directed by the arbitrator, and that the benefit 684 of the award should be available only to Satinder Singh, and it was contended that the amount of compensation fixed by the arbitrator was excessive. All these contentions have been rejected by the High Court and the appeals preferred by the State have been dismissed. The State has not challenged the correctness of the decision of the High Court, and so we are not concerned in the present appeals with the merits of the pleas raised by the State before the High Court. In the appeals preferred by Satinder Singh the High Court rejected his plea that the valuation fixed by the arbitrator in respect of certain properties was inadequate. It also rejected his plea that the amount of compensation ordered to be divided between him and his father Amrao Singh should be deposited in Government Securities. The High Court held that though equitable considerations would be relevant in deciding the question of apportionment, it would be inexpedient to direct that the amount should be deposited in Government Securities because in that case no one will ever be absolutely entitled to it. The High Court also thought that since the State in whose favour the estate may finally lapse owing to escheat did not object to the apportionment made by the arbitrator there was no reason to interfere with the actual order. as to apportionment between father and son which the arbitrator thought was reasonable. In dealing with this question the High Court took the view that the alleged reckless extravagance of the father on which the son relied was not relevant. In the result the three appeals filed by Satinder Singh were dismissed. The High Court then dealt with the appeal preferred by Amrao Singh, and it confirmed the finding of the arbitrator that the property acquired originally formed part of Cis Sutlej States and that in regard to the said States the rule is now well settled that the Jagirs large or small in Cis Sutlej States are non transferable and are even exempt from attachment as political pensions, the holder for the time being having only life interest in the estate, the corpus of which is to be 685 kept intact so that it may pass from heir to heir and lapse in favour of the Government in the absence of any legal heir. The High Court also held that even if the character of the property was considered from the angle of the general custom of Punjab the same conclusion followed because the property in question was undoubtedly ancestral immovable property in the hands of the father qua his son and as such the father had no right to alienate it to the prejudice of his son without legal necessity or any other compelling reason. That is how the principal point urged by the father against the claim set up by his son was rejected and his appeals were dismissed. The appeal preferred by Sardarani Gurdial Kaur also met the same fate and was dismissed. It appears that all the three claimants urged before the High Court that they were entitled to interest at a reasonable rate on the amount of compensation from the time that the property was acquired and they lost possession of it. This contention was likewise rejected by the High Court, and it was held that under the relevant Act of 1948, it was not permissible to award interest on the amount of compensation, The result was that the decision of the arbitrator was fully confirmed and all the appeals preferred before the High Court were dismissed. This decision of the High Court is challenged by special leave by the three claimants Amrao Singh, Satinder Singh and Sardarani Gurdial Kaur respectively. The appeals preferred by Satinder Singh are Civil Appeals Nos. 396 to 398 of 1959; Amrao Singh 's appeals are Civil Appeals Nos. 419 to 421 of 1959, whereas Sardarani Gurdial Kaur 's appeal is Civil Appeal No. 152 of 1960. That is how this group of seven appeals arises from the same land acquisition proceedings taken by the State of Punjab in respect of the lands situated in the four villages already mentioned. We would hereafter refer to Satinder Singh as the appellant, Amrao Singh as respondent 1, the State of Punjab as respondents, and Sardarani Gurdial Kaur as Sardarani. Logically then the first point which we must consider is the nature of the property and the title of 686 respondent 1 in relation to it. That is the principal point which Mr. Viswanatha Sastri sought to raise before us in the appeal filed by respondent 1. This question has been considered both by the arbitrator and the High Court elaborately and they have concurred in making a finding against respondent 1. As the judgment of the High Court points out the fact that the lands in question originally formed part of the domain of section Budh Singh or of the Cis Sutlej States was not seriously disputed before the High Court. This implied concession naturally makes Mr. Sastri 's task very difficult. Besides, we are not satisfied that there is any substance in the plea which Mr. Sastri has raised before us on this point. The history of the property has been considered by the arbitrator, and the arbitrator as well as the High Court have placed considerable reliance on the relevant statements made in the Punjab Land Administration Manual compiled by Sir James Mac. Douie and revised in 1931. Reliance has also been placed on the relevant statements in the compilation known as the " Chiefs and Families of Note in the Punjab " published by the Punjab Government in 1940. The pedigree table of the Singh Purian family given in this publication shows that the family was founded by section Kapur Singh who held the title of Nawab. section Budh Singh was his grandson and he was the head of the family in 1809. Amrao Singh is a descendant of Gopal Singh who was one of the seven sons of Budh Singh. The large Jagirs owned by the families are situated in Kharar and Rupar Tehsils of Ambala District and they formed part of the area formerly known as Cis Sutlej States. Paragraphs 100, 101 and 102 of Douie 's Land Administration Manual give a detailed account of the families and the in properties. The same is also briefly mentioned in the Punjab Gazetteer dealing with Ambala, District. It appears from this material that the Sardars in the Cis Sutlej States were independent Rulers whose ancestors ultimately came under the protection of the British Government in about 1809. Between 1809 to 1847 the British Government tried to enforce good 687 government amongst the semi independent States; in order to achieve this object the British Government gradually strengthened its hold and tightened the reins with a view to enforce good government. It appears that the Government exercised the right of escheat very freely and whenever there was lapse of heirs it G. took up the management and government of the area in its own hands. After 1846 Government began to introduce sweeping measures of reform and with that object Government reduced the privileges and rights of the petty chieftains. In 1849 the chieftains lost their sovereign powers and were deprived of their criminal, civil and fiscal jurisdiction so that they became no more than Jagirdars. Their rights in the lands held by them were, however, left untouched. Rules regarding succession to these Jagirs were framed by the Central Government from time to time and family custom was respected within reasonable limits. One of these rules is to be found in paragraph III of Douie 's Manual. Clause (c) of this paragraph laid down " that alienations by a Jagirdar or pattidar of portions of his holding, whether to his relations or strangers, shall neither be officially recognised nor officially recorded. " Similarly paragraph 164 emphasised the inalienable character of the Jagirs and referred to the opinion expressed by the Court of Directors whereby the said character was clearly and unambiguously notified. " We should have supposed ", said the Court of Directors, " that there could be no necessity for notifying this as a rule, since it follows from the very nature of a Jagir, which cannot be alienated and can only be attached for the life of the holder. " There is thus no doubt that the statements in the authorised publications to which we have just referred and on which the High Court and the arbitrator have relied conclusively show that the holder of property which was a part of Cis Sutlej States did not own the property absolutely but held it as a limited owner. The Kaiflat Taluka of Singh Purian family which has been produced in these proceedings supports the same conclusion. 688 Mr. Sastri, however, wanted to contend that the evidence on the record was insufficient to justify the conclusion that the lands under acquisition formed part of the original estate of section Budh Singh; but he fairly conceded that respondent 1 had not gone into the witness box and had not purported to justify his plea that any of the lands in dispute have been acquired either by him or by his ancestors in such manner that they could be treated as the absolute properties of the holder. The circular issued by the Office of the Commissioner and Superintendent of Cis Sutlej States on February 26, 1857, unambiguously shows that " all proprietary right to any part of the lands forming a part of the Jagir which may be held by the Jagirdar will be considered as pertaining to the Jagir and will go to the holder of the Jagir for the time being." This principle was applicable even to houses and other buildings standing on the Jagir which are in the nature of forts and may be considered to appertain to the estate. The only exception made was in regard to the shops built or acquired by the Jagirdar in a town apart from his place of residence. Therefore, on the material as it stands it is difficult to sustain the plea that the concurrent findings made by the arbitrator and the High Court on the question about the character of the property and the nature of the title held by the holder of the said property are wrong. Incidentally it may be added that the same conclusion has been reached by the High Court on the ground of the customary law prevailing in the Punjab. We must accordingly proceed to deal with the rest of the dispute between the parties on the basis that the respondent 1 is not the absolute owner of the property and that the appellant is entitled to represent the reversionary interest in the present proceedings. That takes us to the pleas raised by the appellant in his appeals. On his behalf it has been urged by the learned Attorney General that the whole amount of compensation in respect of the three villages Matsur, Sunets and Giddarpur should be appropriately invested Pond both he and respondent 1 should 689 be allowed to enjoy the income coming from the said investment in the share which may ultimately be fixed between them. In support of this contention he relies on the provisions of section 32 (1) (b) of the Land Acquisition Act 1 of 1894. This provision empowers the Court to direct that the compensation amount payable to the owners should be invested either in Government or approved securities and the payment of interest or other proceedings arising from such interest should be directed to the person or persons who would for the time being have been entitled to the possession of the lands under acquisition. The argument is that since respondent 1 was not entitled to alienate the property and was under an obligation to keep the corpus in tact for the benefit of the reversioners the compensation amount payable in respect of the acquisition of the said property should be similarly treated and saved for the benefit of the reversioners; in other words, it is urged that the compensation amount should be treated as a conversion of the corpus of lands and the same should not be distributed as directed by the High Court. Section 32 deals with cases where the land acquired belonged to any person who had no power to alienate the same; and since respondent 1 was not entitled to alienate the property the principle enunciated by section 32(1) (b) is pressed into service as an equitable principle which should be applied to the present case. In support of this argument the learned Attorney General has relied on decisions of different High Courts where this principle has been extended to watan property (Shri Somashekhar Swami vs Bapusaheb Narayanrao Patil (1) ), to the property belonging to an idol (K. C. Bannerjee, Official Receiver, In re (2) ), to the property held by a widow (Mt. Gangi vs Santu & Others (3)), or to land belonging to an impartible estate (Special Deputy Collector, Ramnad vs Rajah of Ramnad (4) ). This contention, however, ignores that the provisions of section 32 (1) (b) are intended to be applied only provisionally and for a short period. The scheme of (1) A.I.R. 1948 Bom. (2) A.I.R. 1928 Cal 402. (3) A.I.R. 1929 Lah. (4) A.I.R. 1935 Mad. 690 section 32 is that in cases to which the said section applies the Court shall order the compensation amount to be invested in the purchase of other lands which would be held under the right, title and conditions of ownership as the land in respect of which the compensation amount has been deposited. That is the plain effect of section 32(1)(a). Section 32 (1) (b) comes into operation if such purchase cannot be effected forthwith; and it has to remain in operation until such purchase is made. In other words, if the compensation amount cannot be immediately invested in the purchase of other lands, as an interim measure the said amount may be invested in the prescribed securities and income thereof distributed to those who were entitled to it. Therefore, even if the principle underlying section 32 is extended to the present case on equitable considerations it would not justify the appellant 's claim that the compensation amount should itself be treated as corresponding to the corpus of lands acquired and should be permanently invested in suitable securities leaving to the parties concerned the right to enjoy only its income. Such a course is plainly inconsistent with the principle recognised by section 32(1)(a). Therefore, we are not prepared to accede to the argument that the compensation amount should not be divided between the parties and should be permanently deposited in the fund set apart in proper investments. If the said amount must, therefore, be divided between the appellant and respondent 1 how should it be divided? That is the next question which calls for our decision. The appellant contends that the fairest way to distribute this amount would be to divide it half and half between him and respondent 1. We are inclined to hold that this contention is well founded. As the High Court has observed, it is not at all easy to estimate the relative value of the two interests represented by the appellant and respondent 1. The High Court thought that the ratio may be 2/3 and 1/3 or 3/4 and 1/4 there being little to choose between the two; and so it confirmed the apportionment made by the arbitrator. This decision, however, suffers from one serious infirmity. The High Court thought that 691 the conduct of respondent 1 which was characterized by the appellant as the conduct of a reckless spend. thrift and squanderer was wholly irrelevant in determining the shares to which the appellant and, respondent 1 were respectively entitled. In our opinion, in deciding the question of apportionment on equitable grounds it is relevant and material to take, into account the grievance made by the appellant that the money which would be left with respondent 1 would be frittered away by him and no part of it would reach the reversioner. In support of this contention, the appellant relied on the past conduct of respondent 1. Several alienations made by him are cited and attention is invited to the fact that after respondent 1 became a major his estate has been taken over by the Court of Wards for management under section 5(2) (b) of the Court of Wards Act, 1903, from 1928 to 1938, 1939 to 1947, 1948 to 1954. It has also been urged that since 1954 respondent 1 has made several unauthorised alienations. We do not propose to consider the validity of each one of these allegations but we have no hesitation in holding that on the material available on the record it would be difficult to reject as unfounded the apprehensions which the appellant entertains in regard to the fate of the amount which may be given to respondent 1. Besides, we are also inclined to take into account the fact that the appellant himself has a son and in apportioning the amount we have to bear in mind the fact that the amount is being paid in respect of the lands which respondent 1 holds as a limited owner and the reversionary interest in respect of which has to be safeguarded. We would, therefore, direct that the amount of compensation in respect of the three villages should be divided between the appellant and respondent 1 half and half. It is significant that the amount of compensation in respect of the fourth village which is at present charged for the maintenance of Sardarani has been ordered to be divided half and half. Therefore, we would uphold the contention raised by the learned Attorney General on behalf of the appellant and direct that the said amount should be divided not as 692 2/3 and 1/3 but half and half between the father and son. The next point which the learned Attorney General wanted to urge was that the increase in the amount of compensation directed by the arbitrator should be paid to him exclusively. His case was that the Court of Wards and respondent 1 had accepted the amount offered by the State Government, and it was because he raised contentions that the proceedings were referred to the arbitrator whose award ultimately enhanced the compensation amount to a very large extent. This contention was not raised either before the arbitrator or before the High Court, and we have therefore not allowed the appellant to raise it before us. That takes us to the question of interest which has been urged before us by all the three claimants alike. The argument is that the amount of compensation awarded should carry a reasonable rate of interest from the date of acquisition when the claimants lost possession of their properties. This argument has been rejected by the High Court principally on the ground that the relevant Act of 1948 makes no provision for payment of interest and omission to make such a provision amounts in law to an intention not to award interest in regard to compensation amount determined under it. In support of this conclusion the High Court has referred to the fact that section 5(e) of the Act specifically makes applicable the provisions of section 23(1) of the Land Acquisition Act of 1894, and that, it is said, inevitably leads to the inference that sections 28 and 34 of the Act which deal with the payment of interest are not intended to apply to the proceedings under it. In our opinion, this conclusion is not wellfounded. It would be legitimate to hold that by the application of section 23(1) in terms the provisions of section 23(2) are by necessary implication excluded. If the Legislature has provided that only one part of section 23 should be applied it would be reasonable to hold that the other part of section 23 was not intended to be applied; but we do not see how it would be reasonable to hold 693 that by the application of section 23(1) the principles under lying the provisions of sections 28 and 34 are also excluded. Therefore, it is necessary to examine this question on general grounds and principles without assuming that the application of these general considerations is excluded by any of the provisions of the Act. What then is the contention raised by the claimants? They contend that their immovable property has been acquired by the State and the State has taken possession of it. Thus they have been deprived of the right to receive the income from the property and there is a time lag between the taking of the possession by the State and the payment ' of compensation by it to the claimants. During this period they have been deprived of the income of the property and they have not been able to receive interest from the amount of compensation. Stated broadly the act of taking possession of immovable property generally implies an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State. This question has been considered on several occasions and the general principle on which the contention is raised by the claimants has been upheld. In Swift & Co. vs Board of Trade (1) it has been held by the House of Lords that " on a contract for the sale and purchase of land it is the practice of the Court of Chancery to require the purchaser to pay interest on his purchase money from the date when he took, or might safely have taken, possession of the land. " This principle has been recognised ever since the decision in Birch vs Joy (2). In his speech, Viscount Cave, L.C., added that " this practice rests upon the view that the act of taking possession is an implied agreement to pay interest ", and he points out that the said rule has been extended to cases of compulsory purchase under the Lands Clauses Consolidation Act, 1845. In this connection distinction is drawn between acquisition or sales of land and requisition of goods by the State. In regard to cases falling under the latter category this rule would not apply. (1) 532. (2) ; , 694 In Inglewood Pulp and Paper Co. Ltd. vs New Brunswick Electric Power Commission (1), it was held by the Privy Council that " upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention. " Dealing with the argument that the expropriation with which the Privy Council was concerned was not effected for private gain, but for the good of the public at large, it observed " but for all that, the owner is deprived of his property in this case as much as in the other, and the rule has long been accepted in the inter pretation of statutes that they are not to be held to deprive individuals of property without compensation unless the intention to do so is made quite clear. The right to receive the interest takes the place of the right to retain possession and is within the rule. " It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule is intended to be excluded by the Act of 1948, and as we have already observed, the mere fact that section 5(3) of the Act makes section 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interest. That is the view which the Punjab High Court has taken in Surjan Singh vs The East Punjab Government (2), and we think rightly. It is, however, urged by Mr. Gopal Singh for respondent 2 that what the claimants are entitled to receive is compensation, and since the word " compensation " is used by section 5(1) both in respect of requisition as well as acquisition it would not be fair to import the general rule about the payment of interest where property is acquired. Compensation, it is urged, should represent the price of the property and there is no (1) , (2) A.I.R. 1957 Punj. 265, 695 justification for adding to the said price any amount by way of damages. We are not impressed by this argument. When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession of compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation. In our opinion, therefore, the fact that section 5(1) deals with compensation both for requisition and acquisition cannot serve to exclude the application of the general rule to which we have just referred. Mr. Gopal Singh then relied on some observations made by this Court in Seth Thawardas Pherumal vs The Union of India (1). Bose, J., who spoke for the Court has set out four conditions which must be fulfilled before interest can be awarded under Interest Act of 1839, and observed that not one of those was present in the case with which the Court was concerned. That is why it was held that the arbitrator had erred in law in thinking that he had the power to allow interest simply because he thought the demand was reason able. Having come to this conclusion the learned Judge proceeded to make certain observations in respect of the applicability of section 34 of the Code of Civil Procedure. He added that section 34 does not apply because the arbitrator is not a Court within the meaning of the Code, nor does the Code apply to arbitrators, and but for section 34 even a Court would not have the power to give interest after the suit. These observations were considered by this Court in Nachiappa Chettiar vs Subramaniam Chettiar (2), and it was pointed out that they were obviously not intended to lay down any broad and unqualified proposition like the one which is urged before us by Mr. Gopal Singh in the present appeal. In this connection we may incidentally refer to Interest Act, 1839 (XXXII of 1839). Section 2 of this (1) (2) ; 696 Act confers power on the Court to allow interest in cases specified therein, but the proviso to the said section makes it clear that interest shall be payable in all cases in which it is now payable by law. In other words, the operative provisions of section 1 of the said Act do not mean that where interest was otherwise payable by law Court 's power to award such interest is taken away. The power to award interest on equitable grounds or under any other provisions of the law is expressly saved by the proviso to section 1. This question was considered by the Privy Council in Bengal Nagpur Railway Co. Ltd. vs Buttanji Ramji (1). Referring to the proviso to section 1 of the Act the Privy Council,observed " this proviso applies to cases in which the Court of equity exercises its jurisdiction to allow interest. " We have already seen that the right to receive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by judicial decisions as an equitable right; and so, the proviso to section 1 of the Interest Act saves the said right. We must accordingly hold that the High Court was in error in rejecting the claimants ' case for the payment of interest compensation amount, and so we direct that the said amount should carry interest at 4% per annum from the date when respondent 2 took possession of the claimants ' lands to the date on which it deposited or paid the amount of compensation to them. In the appeal preferred by the Sardarani, Mr. Mathur attempted to challenge the propriety of the order passed by the High Court directing that the amount of compensation in respect of Dhirpur lands should be .invested and that the Sardarani should receive her maintenance from the interest accruing from such investment. Apart from the fact that the order made in that behalf is fair and just, it is clear that the learned counsel for the Sardarani himself had suggested that such an order should be passed. Therefore, we cannot allow Mr. Mathur to raise any contention against the said order in the present appeal. (1) (1938) L.R. 65 I.A. 66, 697 Mr. Mathur further contended that if we were to award interest on the amount of compensation his client would be entitled to receive the whole of the interest on the compensation amount ordered to be paid in respect of the lands in Dhirpur village. That no doubt is true, and indeed Mr. Mathur 's claim in that behalf is not disputed either by the appellant or by respondent 1. We would accordingly modify the decree passed by the High Court by directing that the amount of compensation payable in respect of the lands in Mathur, Saneta and Giddarpur may be divided half and half between the appellant and respondent 1, and that interest should be paid on all the items of compensation determined by the High Court at 4% per annum. The interest in regard to the compensation payable for Dhirpur lands should be paid to the Sardarani, whereas the interest in regard to the lands in the three other villages should be paid half and half to the appellant and respondent 1. In making the payments of compensation amounts to the respective parties whatever amounts may have been withdrawn by or on their behalf should be taken into account and their claims should be properly adjusted in that behalf. In the circumstances of this case we direct that the appellant should get half his costs from respondent 1 and the other half from respondent 2 in his three appeals. There will be only one set of hearing costs. The costs in the remaining four appeals should be borne by the parties. C. A. Nos. 396 to 398 of 1959 and C. A. No. 152 of 1960 allowed in part. C.A. Nos. 419 to 421 of 1959, dismissed.

Lands in four villages forming part of the Cis Sutlej jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of"Immovable Property (Temporary Powers) Act, 1948. At the time of the acquisition A was the holder of the jagir. Possession over one of the villages had been given to 677 A 's wife G in lieu of maintenance under a consent decree. The matter of payment of compensation was referred to an arbitrator. A claimed that he was entitled to the entire compensation amount as he was the present holder of the jagir. A 's son S claimed that the lands, acquired were inalienable, that A merely had a life interest therein and that the compensation money should be deposited out of which A should get only the interest for his life. G claimed that she was entitled to the entire compensation in respect of the lands over which she was in possession. All the claimants claimed interest on the compensation amount from the date of taking of possession to the date of payment of compensation. The arbitrator held: (i) the acquired lands were inalienable and A merely had a life interest thereiq, (ii) S was entitled to a share in the compensation awarded, (iii) the amount of compensation for the first three villages should not be deposited but should be divided between A and S in the proportion of 3/4th to 1/4th, (iv) the compensation for the fourth village should be deposited and the interest thereof be paid to G and after the death of G the amount be divided between A and S half and half, and (v) the claimants were not entitled to any interest on the amount of compensation. On appeal the High Court confirmed the awards in toto. The claimants appealed to the Supreme Court by special leave. Held, that the acquired lands formed part of a Cis Sutlej Jagir which was inalienable, that A was merely a limited owner thereof and was not entitled to the entire amount of compensation and that the reversioners were also entitled to a share therein. The compensation amount could not be permanently deposited leaving the parties the right to enjoy only its income. Even if the equitable principle of section 32, Land Acquisition Act, 1894, was applied it would not justify the permanent investment of the compensation amount. Section 32(1)(b) was intended to be applied provisionally for short periods, where other lands had to be purchased out of the compensation money but were not immediately available and the money had to be invested as an interim measure till such lands were available. It was fair to divide the compensation money in respect of the first three villages half and half between A and section In deciding the question of apportionment on equitable grounds it was relevant and material to take into account the facts that no part of the amount paid to A would reach the reversioners, that S himself had a son and that the reversionary interest had to be safeguarded. Shri Somashekhar Swami vs Bapusaheb Narayanrao Patil A.I.R. , K. C., Banerjee, Official Receive?, In re: A.I.R. 1928 Cal. 402, Mt. Gangi vs Santu A.I.R. 1929 Lah. 736 and Special Deputy Collector, Ramnad vs Rajah of Ramnad A.I.R. 1935 Mad. 215, referred to. Held, further, that the claimants were entitled to interest at 4% per annum on the compensation amount from the date when possession was taken by the State to the (late on which it deposited 678 or paid the amount of compensation to the claimants ' The provision in section 5(e) of the 1048 Act which made section 23(1) of the Land Acquisition Act, 1894, applicable did not exclude the application of SS. 28 and 34 of the latter Act which dealt with the payment of interest. On general principles, the act of taking possession of immovable property generally implied an agreement to pay interest on the value of the property ; the right to receive interest took the place of the right to retain possession. The application of this rule was not excluded by section 5 of the 1948 Act. Even under the Interest Act, 1839, the power to award interest on equitable grounds was expressly saved by the proviso to section 1. Swift & Co. vs Board of Trade , Birch vs joy ; and Inglewood Pulp and Paper Co. Ltd. vs New Brunswick Electric Power Commission , applied. Surjan Singh vs The East Punjab Government A.I.R. 1957 Punj. 265, approved. Seth Thawardas Pherumal vs The Union of India and Nachiappa Chettiar vs Subramaniain Chettiar ; , referred to.

Civil Appeal No. 233 of 1991 etc. From the Judgment and Order dated 21.6.1988 of the Central Administrative Tribunal, Bombay Bench in O.A. No. 58 of 1988. V.C. Mahajan, S.N. Terdal, A.K. Srivastava, C.V, Subba Rao, S.K. Gambhir, Dr. B. L. Wadhera, Sudarshan Menon, P. Parameshwaran and G.D. Gupta for the appearing parties. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. To cater to the educational needs of children of persons employed in the ordnances factory at Ambazari the Central Government has sanctioned and is running a Primary School from classes I to V. In the same premises, the employees 687 of the ordance factory, by their own arrangement are also having a Secondary School with classes VI to X. They have appointed the respondents as teachers in the Secondary School. They are paid honorarium and not full salary. Their honorarium is paid out of fees from the children and other donations received by the school. the respondents, however, approached the Central Administrative Tribunal seeking regularisation of their services and demanding equal pay for equal work. The Tribunal has allowed their claim with certain directions to the appellants including the Union of India. The directions issued by the Tribunal are as follows: "(i) The respondents will immediately take up an assessment of the needs of the school to carry on its activities at their present level and the number of additional teachers required for this purpose; (ii) After assessing the number of teachers needed, the respondents will proceed to create a sufficient number of posts to be filled up on a regular basis; (iii) After completing the above exercise respondents will take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose. the applicants who have worked as teachers in past should be first considered for the posts and only if they are found unsuitable should candidates from sources like the Employment Exchange be considered; (iv) Once the procedure outlined above is completed all persons selected should be appointed on a regular basis and on remuneration admissible to the regular teachers of the primary school; (v) Similar procedure should also be followed in respect of posts of peon giving Shri Tadas an opportunity of competing for regular appontment; (vi) Till the exercise outlined above is completed which we hope will be done before the academic year 1989 90 commences the present procedure may continue and such of the applicants as are selected for appointment will be subject to the same conditions of service as before. " The Union of India and the officers of the ordnance factory have challenged the validity of these directions in Civil Appeal No. 233/1991. The respondents who have not been recruited as per the directions of the Tribunal have preferred Civil Appeal No. 480/1989. We have considered the submissions of counsel on both sides in the light of the material on record. At the outset we may point out that 688 there is no evidence that the respondents were appointed as teachers on honorarium by or on behalf of the Central Government. There is also no evidence that the respondents were initially appointed in the Primary School and latter they were shifted to the Secondary School. The fact, however, remains that when the respondents moved the Tribunal for relies they were only teaching in the Secondary School. It is undisputed that the Central Government has not sanctioned the Secondary School nor created any posts thereto. the Central Government has only sanctioned the Primary School and the posts connected therewith. Those posts are being occupied by regularly recruited teachers. The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis. The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose. These directions are indeed amazing. It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose. There is no law requiring the Central Government to sanction the Secondary School. the Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level. It is a policy matter involving financial burden. No Court or the Tribunal could compel the Government to change its policy involving expenditure. The Tribunal therefore, could not have, could not have, issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law. Secondly, the respondents are not paid by the Central Government. They are not holding any appointment under the Central Government. There is no relationship of master and servant between the Central Government and the respondents. The respondents are employed in the Secondary School by local arrangement made by the officers of the ordnance factory. It is not proved that how the Central Government is accountable to such arrangement made by the local officers. Thirdly, Section 14 of the confers no jurisdiction, power and authority on the Tribunal to deal with the service matters of the employees like the respondents. 689 In any view of the matter, the respondents cannot claim the pay scale admissible to the Government school teachers much less regularisation of their services by the Central Government. The directions issued by the Tribunal therefore, cannot be sustained. They are apparently injustified and without authority of law. In the result we allow the Civil Appeal No. 233/1991, and set aside the order of the Tribunal. the Civil Appeal No. 480/1989 is dismissed. In the circumstances of the case, however, we make no order as to costs. S.B. CA No. 233/91 allowed and CA No. 480/89 dismissed.

The appellant i.e. the Central Government sanctioned primary school from classes I V to cater to the educational needs of children of persons employed in the ordance factory at Ambazari. The employees on their own in the same premises opened a secondary school with classes VI to X. The respondents are teachers in the Secondary School and are being paid out of fees and other donations received by the school, They approached the Central Administrative Tribunal seeking regularisation of their service and demanded equal pay for equal work. The Tribunal allowed their claim with certain directions to the appellants including the Union of India i.e. directing the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis. The Tribunal further directed the Central Government to take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose. Allowing Civil appeal No. 233 of 1991 of the Union of India, and setting aside the order of the Tribunal dismissing Civil Appeal No. 480 of 1989 of the respondents who have not been recruited as per direction of the Tribunal, the Court. HELD: 1. There is no evidence in record that respondents were appointed as teachers on honorarium by or on behalf of the Central Government. There is no evidence that they were initially appointed in primary School and later shifted to the Secondary School. It is undisputed 686 that the Central Government has not sanctioned the Secondary School nor created any posts thereto. It had only sanctioned the Primary School and the posts connected therewith which are being occupied by regularly recruited teachers. [688A B] 2. The directions of the Tribunal are indeed amazing compelling the Central Government to sanction the Secondary School. The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level. It is a policy matter involving financial burden. No court or the Tribunal could compel the Government to change its policy involving expenditure. [688D E] 3. The respondents are not paid by the Central Government. There is no relationship of master and servant between the Central Government and the respondents. The respondents are employed by the local officers so how the Central Government is accountable. [688G] 4. Even section 14 of the Administrative Tribunal Act, 1985 confers no jurisdiction, power or authority on the Tribunal to deal with the service matters of the employees like the respondents. the respondents cannot claim the pay scale admissible to the Government school teachers and much less regularisation of their services by the Central Government. [688H 689A] 5. The directions of the Tribunal are apparently unjustified and without authority of law so cannot be sustained. [688F]

Appeal No. 173 of 1956. Appeal from the judgment and order dated November 15, 1954, of the former Madhya Pradesh High Court at Gwalior in C. F. A. No. 9 of 1951. Ganpat Rai, for the appellant. N. section Bindra and D. D. Sharma for the respondent. 621 1962. April 30. The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior on a certificate of that Court under article 133 (1) (c) and like Civil Appeal No. 24 of 1961, raised the question of the applicability of the Indian Code of Civil Procedure and the question whether the decree sought to be executed was a dec ree of a foreign Court or not. It is a reverse case in the sense that the decree sought to be executed was passed by a Court in West Bedford province of what was British India. In the appeal the appellant is the judgment debtor and the decree holder is the respondent. On December 3, 1949, a decree was passed in favour of the respondent by the Subordinate Judge, Bankura, in the West Bengal and a certificate of transfer was applied for on July 27, 1950, granted on August 8, 1950, and was transferred for execution On August 28, 1950. On September 25, 1950, the decree holder took out execution in the Court of the Additional District Judge, Morena, in what was Gwalior State and subsequently became a part of the United State named Madhya Bharat and after the Constitution the Part B State of Madhya Bharat. On the judgment debtor 's objection the application for execution was dismissed on December 29, 1950, but the appeal against that order was allowed by the High Court on November 15, 1954. It is unnecessary to set out the various sections of the Indian Code of Civil Procedure or to trace the various steps by which as. 43 and 44 were amended in that Code ; that we have done in C. A. No. 24 of 1960 decided today. It was contended before us by the judgment debtor that 622 the Court had no power to transfer the decree under section 38 to the Court in Morena. On the date when the decree was transferred the Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adaptation Order of 1948 but the power of transfer by the Court at Bankura was governed by sections 38 and 39 of the Indian Code of Civil Procedure. Under the Code, the Court to which the decree could be transferred was one established in what was British India because the Code extended to the territories of what was British India and it was not till, the coming into force of Act 11 of 1951 on April 1, 1951, that the Indian Code was applied to the "Territories of India" which comprised Parts A, B and C State. It was contended by Mr. N. section Bindra counsel for the respondent that under sections 38 and 39 of the Indian Code of Civil Procedure a decree could be sent for execution to any Court, the expression "Court" being understood as a place where justice was administered and for this reliance was placed on Manawala Goundan vs Kumarappa Reddy (1) where the word "Court" in section 622 of the old Civil Procedure was defined as a place where justice is judicially administered ; but that was in a case where it had to be determined whether a District Registrar was Court for the purpose of Civil Procedure Code. The definition as given in that case is not of any help in determining the question now before us because what we have to see is whether the Court at Morena even though it administered justice judicially was covered by the word "Court" in section 38 or not. As we have said above "Court" in the section means a court to which the Indian Code of Civil Procedure applies and not any Court. Similarly at the relevant time in es. 40 and 42 of the Indian Code of Civil Procedure "Court" nece I. L. R. 30 mad. 623 ssarily meant a Court to which Indian Civil Procedure Code applied i. e., a Court in what was British India. The Court at Morena not being such a Court the decree could not be transferred to it under the Indian Code of Civil Procedure and sections 38 and 39 were inapplicable to justify such a transfer. The decree, it was then argued, was executable under section 43 of the Indian Civil Procedure Code as amended by the Adaptation of Laws Order of June 5, 1950, which had retrospective effect as from January 26, 1950. After the amendment that section reads : "S 43 Any decree passed (a) by a Civil Court in Part B State, or (b). . . . (c). . . . may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in the States". The argument was that in the present case the expression "in a Part B State, 'should be read as if the expression was "in a Part A State". This again is not permissible for us. Section 43 has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is. It is not permissible for this court to amend the law as suggested. Besides the Indian Civil Procedure Code was not extended to Madhya Bharat till April 1, 1951, by Act 11 of 1951. The decrees of foreign courts were, under the Gwalior Code of which Morena was a part, executable neither under section 233 which required a suit to be brought on the basis of foreign decrees nor under the Madhya 624 Bharat Code of Civil Procedure. The decree therefore could not be executed in Morena under s.43 of the Indian Code of Civil Procedure. It was next argued that the appellant firm was not a foreigner because it did not fall under the foreigners Act (Act 31 of 1946) and reference was made to section 2 (a.) (iii) which was amended by Act 38 of 1947 on December 15, 1947 ; but this Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decrees is governed by the provisions of the Code of Civil Procedure and not by the Foreigners Act. Under the former a decree can be executed by a Court which passed the decree or to which it was transferred for execution and the decree which could be transferred has to be a decree passed under the Code and the Court to which it could be transferred has to be a Court which was governed by the Indian Code of Civil Procedure. But in the present case it was not transferred to a Court which at the time of the transfer was governed by the Indian Code of Civil ,Procedure and therefore the transfer was ineffective for the purpose of execution and as we have said above, section 43 of the Indian Code was inapplicable before Act 11 of 1951 to the State of Madhya Bharat. It is not necessary to go into the other questions raised if the above two questions are decided against the respondent. We therefore allow this appeal, set aside the judgment and order of the High Court and restore that of the executing court. The appellant will have its costs in the court. Appeal allowed.

A decree passed in favour of the respondent by a Subordinate judge of West Bengal was transferred for execution on August 28, 1950 to the Court of the Additional District judge of Morena in what was originally Gwalior State and subsequently became a part of the United States of Madhya Bharat and after the Constitution State of Madhya Bharat. On the date when the decree was transferred, the 620 Courts in Madhya Bharat were governed by the Indian Code of Civil Procedure as adapted by the Madhya Bharat Adapt action Order of 1948 but the power of transfer by the Court of Bankura was governed by sections 38 and 39 of the Indian Code of Civil Procedure. On the judgment debtor 's objection the application for execution was dismissed but the appeal against that order was allowed by the High Court. The appellant contended that the Court had no power to transfer the decree under section 38 to the Court in Morena. The question was with regard to the applicability of the Indian Code of Civil Procedure and whether the decree sought to be executed was a decree of a foreign Court or not. Held, that the Court at Morena not being a court, to which Indian Civil Procedure Code applied, the decree could not be transferred to it under the Indian Code of Procedure and sections 38 and 39 were inapplicable to justify such a transfer. The Indian Civil Procedure Code was not extended to Madhya Bharat till April 1, 1951, by the Act 2 of 1951. The decrees of foreign courts were under the Gwalior Court of which Morena was a part, not executable under section 233 which required a suit to be brought on the basis of foreign decree under not the Madhya Bharat Court of Civil Procedure. Held, further, that the Foreigners Act is not relevant for the purpose of finding out whether the decree was a foreign decree or not because the execution of decree is governed by the provisions of the Code of Civil Procedure and not by Foreigners Act. A section of an enactment has to be interpreted as it is and a Court cannot read it as if its language was different from what it actually is.

Special Leave Petition (Civil) No. 4557 of 1988. From the Judgment and Order dated 21.3.88 of the Bombay High Court in Appeal No. 306 of 1988. F.S. Nariman, B.D. Sharma and R.P. Kapur for the Petitioner. Soli J. Sorabjee, Harsh Mittre, Harish N. Salve, Jeel Peres, D.N. Mishra and Mrs. A.K. Verma for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition under Article 136 of the Constitution challenges the judgment and order of the Division Bench of the High Court of Bombay dated 21st March, 1988. The petitioner in this case on 23rd June, 1961, had agreed to sell to the predecessor of respondent raw petroleum coke. There was a second agreement on 22nd April, 1971. The said agreement was arrived at between the parties whereunder it was provided that in case the respondent failed to lift raw petroleum coke as agreed, the petitioner would have right to shift raw petroleum coke at the risk and expense of the respondent. There was a third agreement providing that in case of delay in payment, the respondent would pay interest at 4 per cent over the I.O.C. Bank borrowing rate, on the value of the stock not uplifted. It appears that on 5th August, 1982, the respondent wrote a letter to the petitioner showing inability to pay the arrears of the price against delivery of raw petroleum coke. On 4th October, 1982 there was a stock of about 13,760 M.T.S. Of saleable raw petroleum coke lying at Gauhati Refinery. The petitioner on 18th October, 1982 wrote to the 429 respondent that unless the outstandings as on 1st September, 1982 and interest were paid, the petitioner would not make further supplies. Thereafter the petitioner filed Suit No. 2187 of 1982 for payment and for attachment before judgment. On 21st December, 1982, it appears that there was an order of attachment of stocks of raw petroleum coke to the extent of Rs.6 crores of the respondent. The order was confirmed after notice. Respondent filed Appeal No. 858 of 1983. Thereafter respondent on 20th ostler, 1983 filed an application for stay of the suit under section 34 of the (hereinafter called 'the Act '). The petitioner on 11th July, 1983 terminated the agreement with effect from 31.8.83. The respondent thereafter filed Suit No. 122 of 1983 and applied for an order compelling the petitioner to make supplies. The learned District Judge passed an order on 28th April, 1984 for restoration of supplies. On 7th May, 1984 in petitioner 's appeal viz., Civil Appeal No. 2476 of 1984, this Court stayed the above order. On 24th May, 1984 this Court 's order setting aside the order of the learned District Judge dated 28th April, 1984 and recorded the compromise terms. Pursuant to the compromise, all proceedings were withdrawn by the parties. On 11th December, 1984 matter relating to the petitioner 's claims in respect of interest on stocks held from 1st October, 1982 onwards and expenses of shifting raw petroleum coke from 1st October, 1982 upto 31st August, 1983, were referred to arbitration of Shri A.K. Sarkar, a former Chief Justice of India. On 21st August, 1986 an interim award was passed by the learned arbitrator. Interim award was filed in the High Court of Bombay and the petitioner challenged the said award. The learned single Judge of the High Court dismissed the petition challenging the interim award. The Division Bench of the High Court of Bombay upheld the order of the learned single Judge. Hence this petition under Article 136 of the Constitution. The main contention urged before us was that it was necessary in the present trend of law for the learned arbitrator to have given a reasoned award. The Arbitration Act, 1979 in England so enjoins. The arbitrator, according to the petitioner has failed to do so. Hence the award was bad and as such the decision of the High Court was wrong and leave should be granted from the said decision and the matter be referred to the Constitution Bench as several cases are pending on this point. The learned single Judge of the High Court in his decision had observed that the award was undoubtedly not an elaborately reasoned award setting out all the reasons which prompted the learned arbitrator to arrive at the conclusion he did reach, but it was a speaking 430 award. The learned Judge however, held that it was not necessary to examine this aspect since even if it was a speaking order, it was not bad in law. It is true that the law as it stands upto date since the decision of Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., A.I.R. 1923 P.C. 66 that it was not necessary that all awards should be speaking awards. See in this connection the observations of this Court in Hindustan Steelworks Construction Ltd. vs Shri C.Rajasekhar Rao, 3 S.C. 239. Previously the law both in England and India was that an arbitrator 's award might be set aside for error of law appearing on the face of it, though the jurisdiction was not lightly to be exercised. Since question of law could always be dealt with by means of a special case this is one matter that could be taken into account when deciding whether the jurisdiction to set aside an award on this ground should be exercised or not. The jurisdiction was one that existed at common law independently of statute. In order to be a ground for setting aside the award, an error in law on the face of the award must be such that there could be found in the award, or in any document actually incorporated with it, some legal proposition which was the basis of the award and which was erroneous. See Halsbury 's Laws of England, 4th edition. paragraph 623, page 334. The law has undergone a sea change in England. It is obligatory in England now after the Arbitration Act, 979, that the award should give reasons. In the instant case. the arbitrator has set out the history in the interim award. The arbitrator has stated that the agreement dated 22nd April. 1970 provided that I.C.L. will uplift all available coke produced at the Gauhati Refinery by which name also the Noonmati Refinery was called. the said upliftment being so regulated that the quantity uplifted every week was equivalent to the production of coke at the refinery in the previous week and that whereas it was thereby further provided that the upliftment by I.C.L. shall also be as regulated that the accumulated quantity of coke in the refinery coke yard does not fall below 2500 tons and does not exceed 4500 tons. The other history of the matter, it was recited that the order dated 24th May, 1984 was passed by consent of the parties by this Court that the claim of the Indian oil Corporation for interest on stocks said to have been held in the Gauhati Refinery from 1st October, 1982 onwards and its claim for expenses of shifting the coke from 1st October, 1982 upto 3 1st August, 1983 would be referred to the arbitration of a retired Judge of the Supreme Court mutually acceptable to the parties. Two preliminary issues, the arbitrator framed were, namely, (1) Is the 431 claimant entitled to charge any interest on unlifted stock of raw petroleum coke in view of its letter dated October 18, 1982? and (2) Is the claimant entitled to any shifting charges in view of its letter dated 18th October, 1982? The gist of the letter dated 18th October, 1982 is set out in the arbitration agreement. The arbitrator in his award pro to observe as follows: "And whereas it is not in dispute between the parties that since the said letter of 18th October, 1982, I.O.C. had not delivered or offered to deliver any raw petroleum coke for I.C.L. Now, therefore, having heard counsel for the parties and perused the documents and statements filed by them, the despatch and receipt of none of which is disputed, and having considered thereafter, I adjudge, hold and award as follows: The letter dated 18th October, 1982 is no bar to Indian oil Corporation 's claim for shifting charges and interest in respect of the period from 1st October, 1982 to 17th October, 1982. Because of the said letter which has been admittedly acted upon by the Indian oil Corporation Ltd. which had not delivered any coke to Indian Carbon Ltd. Or made any offer to do so the Indian oil Corporation Ltd. is not entitled to the interest claimed in respect of the period from 18th October, 1982 onwards nor to shifting charges in respect of any shifting done on or after 18th October, 1982. " The aforesaid grounds are the reasons of the arbitrator for making the award. The award is that the Indian oil Corporation is not entitled to any interest nor any shifting charges. The reasons for the said conclusion are the aforesaid three factors mentioned by the arbitrator. How the arbitrator has drawn inference is apparent from the reasons. It is to be noted that this Court has been insisting on the arbitrators to give some indications to indicate how the mind of the arbitrator acts. This Court in the case of Siemens Engineering and Manufacturing Company of India Ltd. vs Union of India, was concerned with the decision of the Collector of Customs. This Court observed that where an authority makes an order 432 in exercise of a quasi judicial function, it must record its reasons in support of the order it makes. This Court observed further that every quasi judicial order must be supported by reasons. In Rohtas Industries Ltd. and Another vs Rohtas Industries Staff Union and others; , where this Court was concerned with an award under section 10A of the . This Court observed that there was a need for a speaking order where considerable numbers are affected in their substantial rights. It was further reiterated that in such a situation a speaking order may well be a facet of natural justice or fair procedure. In Dewan Singh vs Champat Singh, ; , this Court reiterated that it was an implied term of the arbitration agreement that the arbitrators must decide the dispute in accordance with the ordinary law and they cannot decide disputes on the basis of their personal knowledge. The proceedings, it was held, before the arbitrators were quasi judicial proceedings and they must be conducted in accordance with the principles of natural justice. It was, therefore, obligatory to give reasons. As mentioned hereinbefore there has been since then trend that reasons should be stated in the award and the question whether the reasons are necessary in ordinary arbitration agreement between the parties has been referred to the Constituion Bench. In this case, however, we are in agreement with the High Court of Bombay that reasons were stated in the award. We have set out hereinbefore the three grounds, namely, (1) The letter dated 18th October, 1982 is no bar to Indian oil Corporation 's claim for shifting charges and interest in respect of the period from 1st October, 1982 to 17th October, 1982. (2) The inference drawn from the contents of the letter and (3) Because of the said letter which has admittedly been acted upon by the Indian oil Corporation Ltd., and which had not delivered any coke to the Indian Carbon Ltd. Or made any offer to do so. For these reasons, the arbitrator held that the Indian oil Corporation Ltd., is not entitled to interest claimed in respect of the period from 18th October, 1982 onwards nor to shifting charges from 18th October, 1982. These are the reasons for giving the award. No error of law was pointed out in those reasons. Indeed no proposition of law was stated in the aforesaid reasons, which could be objected to as an error of law. There was, however, no error of fact. It was a possible view to take. It could not be urged that it was an impossible view to take. The arbitrator has made his mind known on the basis of which he has acted that, in our opinion, is sufficient to meet the requirements even if it be reasons should be stated in the award. It is one thing to say that 433 reasons should be stated and another thing to state that a detailed judgment to be given in support of an award. Even if it be held that it is obligatory to state the reasons, it is not obligatory to give a detailed judgment. This question was considered by the Court of Appeal in England in Bremer Handelsgesellschaft vs Westzucker, [1981] 2 Lloyd 's Law Reports 130. There Lord Donaldson speaking for the court at pages 132 and 133 of the report observed as follows: "It is of the greatest importance that trade arbitrators working under the 1979 Act should realize that their whole approach should now be different. At the end of the hearing they will be in a position to give a decision and the reasons for that decision. They should do so at the earliest possible moment. The parties will have made their submissions as to what actually happened and what is the result in terms of their respective rights and liabilities. All this will be fresh in the arbitrators ' minds and there will be no need for further written submission by the parties. No particular form of award is required. Certainly no one wants a formal "Special Case". All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a "reasoned award". For example, it may be convenient to begin by explaining briefly how the arbitration came about "X sold to Y 200 tons of soyabean meal on the terms of GAFTA Contract 100 at US. $Z per ton c.i.f. Bremen. X claimed damages for non delivery and we were appointed arbitrators". The award could then briefly tell the factual story as the arbitrators saw it. Much would be common ground and would need no elaboration. But when the award comes to matters in controversy, it would be helpful if the arbitrators not only gave their view of what occurred, but also made it clear that they have considered any alternative version and have rejected it, e.g., "The shippers claimed that they shipped 100 tons at the end of June. We are not satisified that this is so", or as the case may be. "We are satisfied that this was not the case". The arbitrators should end with their conclusion as to the resulting rights and liabilities of the parties. There is nothing about 434 this which is remotely technical, difficult or time consuming. It is sometimes said that this involves arbitrators in delivering judgments and that this is something which requires legal skills. This is something of a half truth. Much of the art of giving a judgment lies in telling a story logically, coherently and accurately. This is something which requires skill, but it is not a legal skill and it is not necessarily advanced by legal training. It is certainly a judicial skill, but arbitrators for this purpose are Judges and will have no difficulty in acquiring it. Where a 1979 Act award differs from a judgment is in the fact that the arbitrators will not be expected to analyse the law and the authorities. It will be quite sufficient that they should explain how they reached their conclusion, e.g., "We regarded the conduct of the buyers, as we have described it, as constituting a repudiation of their obligations under the contract and the subsequent conduct of the sellers, also as described, as amounting to an acceptance of that repudiatory conduct putting an end to the contract". It can be left to others to argue that this is wrong in law and to a professional Judge, if leave to appeal is given, to analyse the authorities. This is not to say that where arbitrators are content to set out their reasoning on questions of law in the same way as Judges, this will be unwelcome to the Courts. Far from it. The point which I am seeking to make is that a reasoned award, in accordance with the 1979 Act, is wholly different from an award in the form of a special case. It is not technical, it is not difficult to draw and above all it is something which can and should be produced promptly and quickly at the conclusion of the hearing. That is the time when it is easiest to produce an award with all the issues in mind. " See the observations in Russel on Arbitration, 20th Edn., page 291 Reasons for the Award and the decision referred to therein. " In a case of this nature, issues are simple, points are fresh and facts are clear, the reasons given by the arbitrator, in our opinion, meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly or unreasonably. Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds 435 should be available to find out the mind of the arbitrator for his action. This was possible in the instant case. In the instant case the arbitrator has spoken his mind, and he is clear as to how he acted and why he acted in that manner. The purpose of section 12 of the English Tribunal and Inquiries Act which required the statutory tribunal to furnish a statement of the reasons if requested to do so before it gave its decision was to enable a person whose property or whose interests were affected to know if the decision was against him what the reasons were. Justice R.S. Bachawat in his Law of Arbitration, First Edition 1983, pages 320 and 321 states that the provision was read as meaning that proper and adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award and the arbitrator does give his reasons in the award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. The Court does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous. Judges in that light, the award in question was unassailable in the instant case. In the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took. The special leave petition fails and is accordingly dismissed. G.N. Petition dismissed.

% In respect of sale of raw petroleum coke by petitioner to respondent there were three agreements, providing for sale, petitioner 's right to shift raw petroleum coke at the risk and expense of the respondent in case of failure of Respondent to shift the same as agreed, and the Respondent 's liability to pay interest on the value of stock not uplifted. There was default in payment and petitioner stopped supplies to respondent, filed a suit and obtained an order of attachment of stocks of raw petroleum coke, to the extent of Rs.6 crores, of the Respondent. The respondent filed an appeal as also an application for stay of the suit under Section 34 of the . Meanwhile the petitioner terminated the agreement. Thereafter the respondent filed a suit and the Court passed an order for restoration of supplies. On an appeal by the petitioner, this Court stayed the order of restoration of supplies, and recorded the compromise terms, pursuant to which all proceedings were withdrawn by the parties. The petitioner 's claim were referred to an Arbitrator, who passed an interim award, according to which the petitioner was not entitled to any interest nor any shifting charges. The petitioner challenged the said award, when it was filed in High Court. The High Court dismissed the petition and this special leave petition is against the High Court 's order. It was contended before this Court that the Arbitrator has failed to give a reasoned award and so it is bad in law. Dismissing the special leave petition, this Court, ^ HELD: 1. It is obligatory in England now after the Arbitration , that the award should give reasons. The purpose of Section 12 of the Act requiring the tribunal to furnish a statement of reasons if requested to do so before it gave its decision is to enable the person whose property or whose interests were affected, to know, if the decision was against him, what the reasons were. [435B C] 'Law of Arbitration ' by Justice R.S. Bachawat. First Edition 1983 pp. 320 and 321, referred to. 2.1 In India, there has been a trend that reasons should be stated in the award. The reasons that are set out must be reasons which will not only be intelligible but also deal with the substantial points that have been raised. When the arbitration clause required the arbitrator to give a reasoned award, the sufficiency of the reasons depend upon the facts of the particular case. He is not bound to give detailed reasons. [435C D] 2.2 The Court does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous.[435D E] 2.3 The award in question is unassailable. According to the Arbitrator, because of the letter dated 18th October, 1982 of the petitioner addressed to the Respondent stating that if the outstandings and interest are not paid, further supplies would not be made, has been acted upon by the petitioner, which had not delivered any coke to the respondent, or made any offer to do so, the petitioner was not entitled to the interest in respect of the period from 18th October, 1982 onwards, nor to shifting charges in respect of any shifting on or after 18th October, 1982. On this reasoning, he had given the award. How the Arbitrator has drawn inference is apparent from the reasons. No proposition was stated in the aforesaid reasons, which could be objected to as an error of law. The reasons given by the Arbitrator meet the requirements of a reasoned award. It is apparent that the arbitrator has not acted irrelevantly and unreasonably. [432E G; 434G H] 2.4 Arbitration procedure should be quick and that quickness of the decision can always be ensured by insisting that short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action. This was possible in the instant case where the arbitrator has spoken his mind, and he is clear as to how he acted 428 and why he acted in that manner.[434H; 435A] Champsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd., AIR, ; Hindustan Steelworks Construction Ltd. vs Shri C. Rajasekhar Rao, 3 S.C. 239; Siemens Engineering and Manufacturing Company of India Ltd. vs Union of India, [1976] Suppl. S.C.R. 489; Rohtas Industries Ltd. and Another vs Rohtas Industries Staff Union and others; , and Dewan Singh vs Champat Singh, ; , referred to Bremer Handelsgesellschaft vs Westzucker, [1981] 2 Lloyd 's Law Reports 130, referred to.

Appeal Nos. 38 and 39 of 1964. Appeals from the judgment and order dated April 10, 1961 of the Madhya Pradesh High Court in Miscellaneous Civil Case No. 63 of 1961. C. K. Daphtary, Attorney General, R. Ganapathy Iyer and R. N. Sachthey, for the appellant (for both the appeals). N. D. Karkhanis, Rameshwar Nath, section N. Andley and P. L. Vohra, for the respondent (in both the appeals). The Judgment of the Court was delivered by Subba Rao, J. These two appeals by certificate arise out of the judgment of the High Court of Madhya Pradesh, Jabalpur, in Miscellaneous Case No. 63 of 1961 from a reference under section 66(2) of the Indian Income tax Act, 1922, made by the Income tax Appellate Tribunal, Bombay. To appreciate the contention of the parties the following genealogy will be useful: Kalooram Todi : : : : Govindram Gangaprasad (d. in January 1943) (d. in 1933) : : : : : Bachhulal : : : : : : Madanlal (predeceased his Nandlal Babulal father) (d. 9 12 1945) (b. 25 1 1935) : : Jankibai Banarsibai : : : : Radheyshyam (predeceased Venkatlal his father) (b. 13 12 1931) : : Shantibai : : Vishwanath (adopted) (b. 13 4 1941) 490 After the death of Kalooram Todi, his two sons by name Govindram and Gangaprasad constituted a joint Hindu family which owned extensive property in Jaora State and a sugar mill called "Seth Govindram Sugar Mills" at Mahidpur Road in Holkar State. In the year 1942 Bachhulal filed a suit for partition against Govindram and obtained a decree therein. In due course the property was divided and a final decree was made. We are concerned in these appeals only with the Sugar Mills at Mahidpur Road. After the partition Govindram and Bachhulal jointly worked the Sugar Mills at Mahidpur Road. After the death of Govindram in 1943, Nandlal, the son of Govindram, and Bachhulal, as kartas of their respective joint families, entered into a partnership on September 28, 1943 to carry on the business of the said Sugar Mills. Nandlal died on December 9, 1945, leaving behind him the members of his branch of the joint family, namely, the three widows and the two minor sons shown in the genealogy. After the death of Nandlal, Bachhulal carried on the business of the Sugar Mills in the name of "Seth Govindram Sugar Mills". For the assessment year 1950 51, the said firm applied for registration on the basis of the agreement of partnership dated September 28, 1943. The Income tax Officer refused to register the partnership on the ground that after the death of Nandlal the partnership was dissolved and thereafter Bachhulal and the minors could be treated only as an association of persons. On that footing he made another order assessing the income of the business of the firm as that of an association of persons. Against the said orders, two appeals one being Appeal No. 21 of 1955 56 against the order refusing registration and the other being Appeal No. 24 of 1955 56 against the order of assessment were filed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed both the appeals. In the appeal against the order of assessment, the Appellate Assistant Commissioner exhaustively considered the question whether there was any partnership between the members of the two families after the death of Nandlal and came to the conclusion that in fact as well as in law such partnership did not exist. Two separate appeals, being Income tax Appeal No. 8328 of 1957 58 and Income tax Appeal No. 8329 of 1957 58, preferred to the Income tax Appellate Tribunal against the orders of the Appellate Assistant Commissioner were dismissed. The assessee made two applications to the Tribunal for referring certain questions of law to the High Court, but they were dismissed. Thereafter, at the instance of the assessee the High Court directed the Tribunal to submit the following two questions for its decision and it accordingly did so: "(1) Whether on the facts and in the circumstances of the case, the status of the assessee, "Seth Govindram Sugar Mills, Mahidpur Road, Proprietor Nandlal Bachhulal, Jaora", is an Association of Persons or a firm within the meaning of Section 16(1)(b) of the Income tax Act. " 491 "(2) Whether the order of the Appellate Tribunal is illegal on account of the Tribunal having committed an error of record and having omitted to consider the relevant material in the case. " The High Court, for reasons given in its judgment, held on the first question that in the assessment year 1949 50 the status of the assessee was that of a firm within the meaning of section 16(1),(b) of the Income tax Act and on the second question it held that the Tribunal misdirected itself in law in reaching the conclusion that the parties could not be regarded as partners. The present two appeals are preferred against the said order. At the outset we must make it clear that the question of registration could not be agitated in these appeals, as that question was not referred to the High Court. We shall, therefore, only consider the points raised by the questions referred to the High Court and held by the High Court against the appellant. Indeed, the only effective question is whether during the assessment year 1950 51 the assesee was a firm or an association of persons. The first question raised by the learned Attorney General is that on the death of Nandlal the firm of Seth Govindram Sugar Mills was dissolved and thereafter the income of the said business could only be assessed as that of an association of persons. To appreciate this contention some more necessary facts may be stated. The deed of partnership dated September 28, 1943, was executed between Nandlal and Bachhulal. It is not disputed that each of the said two partners entered into that partnership as representing their respect;, joint families. Under cl. (3) of the partnership deed, "The death of any of the parties shall not dissolve the partnership and either the legal heir or the nominee of the deceased partner shall take his place in the provisions of the partnership" The question is whether on the death of Nandlal his heirs, i.e., the members of his branch of the family, automatically became to partners of the said firm. The answer to the question turns upon section 42 of the (Act 9 of 1932). the material,part of which reads: "Subject to contract between the partners a firm is dissolv ed by the death of a partner. " While for the appellant the leaned Attorney General contended that section 42 applied only to a partnership consisting of more than two partners, for the respondent Mr. Karkhanis argued that the section did not impose any such limitation and that on its terms it equally applied to a partnership comprising only two partners. It was argued that the contract mentioned in the over riding clause was a contract between the partners and that, if the parties to the contract agreed that in the event of death of either of them his successor would be inducted in his place, the said contract would be binding 492 on the surviving member. On the death of one of the partners, it was said, his heir would be automatically inducted into the partnership, though after such entry he might opt to get out of it. This conclusion the argument proceeded was also supported by section 31 of the Partnership Act. Section 31 of the Partnership Act reads: "(1) Subject to contract between the partners and to the provisions of section 30, no person shall be introduced as a partner into a firm without the consent of all the existing partners." Converting the negative into positive, under section 31 of the Partnership Act if there as a contract between the partners, a person other than the partners could be introduced as a partner of the firm without the consent of all the existing partners. A combined reading of sections 42 and 31 of the Partnership Act, according to the learned counsel, would lead to the only conclusion that two partners of a firm could by agreement induct a third person into the partnership after the death of one of them. There is a fallacy in this argument. Partnership, under section 4 of the Partnership Act, is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Section 5 of the said Act says that the relation of partnership arises from contract and not from status. The fundamental principle of partnership, therefore, is that the relation of partnership arises out of contract and not out of status. To accept the argument of the learned counsel is to, negative the basic principle of law of partnership. Section 42 can be interpreted without doing violence either to the language used or to the said basic principle. Section 42(c) of the Partnership Act can appropriately be applied to a ' partnership where there are more than two partners. If one of them dies, the firm is dissolved; but if there is a contract to the contrary, the surviving partners will continue the firm. On the other hand, if one of the two partners of a firm dies, the firm automatically comes to an end and, thereafter, there is no partnership for a third party to be introduced therein and, therefore, there is no scope for applying cl. (c) of section 42 to such a situation. It may be that pursuant to the wishes of the directions of the deceased partner the surviving partner may enter into a new partnership with the heir of the deceased partner, but that would constitute a new partnership. In this light section 31 of the Partnership Act falls in line with section 42 thereof. That section only recognizes the validity of a contract between the partners to introduce a third party without the consent of all the existing partners: it presupposes the subsistence of a partnership; it does not apply to a partnership of two partners which is dissolved by the death of one of them, for in that event there is no partnership at all for any new partner to be inducted into it without the consent of others. There is a conflict of judicial decisions on this question. The decision of the Allahabad High Court in Lal Ram Kumar vs 493 Kishori Lal(1) is not of any practical help to decide the present case,. There. from the conduct of the surviving partner and the heirs of the deceased partner after the death of the said partner, the contract between the original partners that the partnership should not be dissolved on the death of any of them was inferred. Though the partnership there was only between two partners, the question of the inapplicability of section 42(c) of the Partnership Act to such a partnership was neither raised nor decided therein. The same criticism applies to the decision of the Nagpur High Court in Chainkarcin Sidhakaran Oswal v Radhakisan Vishwnath Dixit(2). This question was directly raised and clearly answered by a Division Bench of the Allahabad High Court in Mt. Sughra vs Babu(3) against the legality of such a term of a contract of partnership consisting of only two partners. Agarwala, J., neatly stated the principle thus: "In the case of a partnership consisting of only two partners, no partnership remains on the death of one of them and, therefore, it is a contradiction in terms to say that there can be a contract between two partners to the effect that on the death of one of them the partnership will not be dissolved but will continue . . Partnership is not a matter of status, it is a matter of contract. No heir can be said to become a partner with another person without his own consent, express or implied. " This view accords with that expressed by us earlier. In Narayanan vs Umayal(4). Ramachandra lyer J., as he then was, said much to the same effect when he observed thus: ". . . if one of the partners died, there will not be any partnership existing to which the legal representatives of the deceased partner could be taken in. In such a case the partnership would come to an end by the death of one of the two partners, and if the legal representatives of the deceased partner joins in the business later, it should be referable to a new partnership between therein." But Chatterjee J., in Hansraj Manot vs Messrs. Gorak Nath Pandey(5) struck a different note. His reasons for the contrary view are expressed thus: "Here the contract that has been referred to s the contract between the two partners Gorak Nath and Champalal Therefore, it cannot be said that the contract ceased to have effect because a partner died. The contract was there. There was no new contract (1) A.T.R. 1946 All. 259. (2) A.T.R.1956 nag. 46 (3) A.I.R. 1952 All. 506, 507. (4) A.I.R, 1959 Mad. 283,284. (5) , 264. (N)4SCI 5 494 with the heirs and there was no question of a new contract with the heirs because of the original contract, and by virtue of the original contract the heirs become partners as soon as one of the partners died. . . As soon as there is the death, the heirs become the partners auto matically without any agreement between the original Partners by virtue of the original agreement between the Partners while they were surviving. there is no question of interregnums. As soon as the death occurs the right of somebody else occurs. The question of interregnums does not arise. The heirs become partners not because of a contract between the heirs on the one hand and the other partners on the other but because of the contract between the original partners of the firm. " With great respect to the learned Judge, we find it difficult to appreciate the said reasons. The learned Judge seems to suggest that by reason of the contract between the original partners, the heirs of the deceased partner enter the field simultaneously with the removal by death of the other partner from the partnership. This implies that the personality of the deceased partner projects into that of his heirs, with the result that there is a continuity of the partnership without any interregnums. There is no support either on authority or on principle for such a legal position. In law and in fact there is an interregnums between the death of one and the succession to him. We accept the view of the Allahabad and Madras High Courts and reject the view expressed by Nagpur and Calcutta High Courts, The result of the discussion is that the partnership between Nandlal and Bachhulal came to an end on the death of Nandlal on December 9, 1945. The next question is whether after the death of Nandlal a new partnership was entered into between the representatives of the two branches of the families, i.e., Nandlal 's and Bachhulal 'section Before we consider this question it is as well that we advert to incidental questions of law that were raised. One is whether the widow of Nandlal could under Hindu law be a karta of the joint Hindu family consisting of three widows and two minors. There is conflict of view on this question. The Nagpur High Court held that a widow could be a karta: see Commissioner of Income tax, C. P. & Berar vs Seth Laxmi Narayan Raghunathdas(1); Pandurang Dahke vs Pandurang Gorle(2), The Calcutta High Court expressed the view that where the male members are minors and their natural guardian is the mother, the mother can represent the Hindu undivided family for the purpose of assessment and recovery of taxes under the Income tax Act: see Sushila Devi Rampurla vs Income tax Officer(2); and (3) 495 Sm. Champa Kumari Singhi vs Additional Member, Board of Revenue, West Bengal(1) The said two decisions did not recognize the widow as a karta of the family, but treated her as the guardian of the minors for the purpose of income tax assessment. The said. decisions, therefore, do not touch the question now raised. The Madras and Orissa High Courts held that coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a copartner, she has no legal qualifi cations to become the manager of a joint Hindu family. The decision of the Orissa High Court in Budhi Jena vs Dhobai Naik(2) followed the decision of the Madras High Court in V.M.N. Radha Ammal vs Commissioner of Income tax, Madras(2) wherein Satyanarayana Rao J., observed: "The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a copartner of the joint family Further, the right is confined to the male members of the family as the female members were not treated as copartner though they may be members of the joint family. " Viswanatha Sastri J., said: "The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the copartner of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family. " Thereafter, the learned Judge proceeded to state: "It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most female member of a joint Hindu family, even though she has adult sons who are entitled as copartner to the absolute ownership of the property, could be the manager of the family . . . . She would be the guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the joint family for she is not a copartner. " The view expressed by the Madras High Court is in accordance with well settled principles of Hindu law, while that expressed by the Nagpur High Court is in direct conflict with them. We are clearly of the opinion that the Madras view is correct. Another principle which is also equally well settled may be noticed. A joint Hindu family as such cannot be a partner in a firm, but it may, through its karta enter into a valid partnership with a stranger or with the karta of another family. This Court in Kshetra (1) (2) A.I.R. 1956 Orissa 6. (3) , 230, 232, 233. 496 Mohan Sanyasi Charan Sadhukhan vs C.E.P.T.(1) pointed out that when two kartas of different families constituted a partnership the other members of the families did not become partners, though the karta might be accountable to them. The question, therefore, is whether after the death of Nandlal the representatives of the two families constituted a new partnership and carried on the business of the Sugar Mills. Admittedly no fresh partnership deed was executed between Banarsibai, acting as the guardian of the minors in Nandlal 's branch of the family and Bachhulal. It is not disputed that partnership between the representatives of two families can be inferred from conduct. Doubtless the accounts produced before the income tax authorities disclosed that Bachhulal was carrying on the business of "Seth Govindram Sugar Mills Ltd." in the same manner as it was conducted before the death of Nandlal. Therein Kalooram Govindram and Gangaprasad Bachhulal were shown as partners, Govindram having 10 annas share and Bachhulal having 6 annas share. There were separate current accounts for the two parties. The Appellate Assistant Commissioner, who examined the accounts with care, gave the following details from the accounts ason November 1, 1948: Joint capital account of Kalooram Govindram and Gangaprasad Bachhulal in the ratio of 10 : 6 Rs. Credit balance 10,78,660 Current Accounts: Gangaprasad Bachhulal Do. 10,46,797 Kalooram Govindram Do. 8,30,348 Profit & Loss Account Debit balance 14,01,669 No profit or loss was adjusted to the current account of the parties. Thereafter the accounts were closed as on 31 3 1950, when the capital account was squared up by transferring that much loss from the profit and loss account and balance in the profit and loss account was transferred in the ratio of 10:6 to the current accounts of the two parties. Thus the profit and loss account showed: Net debit balance including current Rs. year 's loss 17,51,992 Loss set off against capital account 10,78,666 . . . . Rs. 6,73,326 Transferred to partners ' accounts: Messrs. Kalooram Govindram 4,20,829 Messrs. Gangaprasad Bachhulal 2,52,497 6,73,326 . . . . Balance Nil (1)[1954] S.C.R. 497 The accounts only establish that Bachhulal was doing the business of Govindram Sugar Mills Ltd. But Banarsibai 's name was not found in the accounts. If she was a partner, her name should have found a place in the accounts. Not a single document has been produced on behalf of the assessee which supports the assertion that Banarsibai acted as a partner or was treated by the customers of the firm as a partner. There is not a little of evidence of conduct of Bachhulal, Banarsibai or even of third parties who had dealings with the firm to sustain the plea that Banarsibai was a partner of the firm. Indeed, the conduct of the parties was inconsistent with any such partnership between Banarsibai and Bachhulal. After the death of Nandlal, Banarsibai and Shantibai applied to Jaora District Court for the appointment of guardians to look after the properties and the persons of the two minors; and on January 21, 1946, four persons other than these two widows were appointed as guardians of the minors. If Banarsibai was acting as a guardian of the minors representing the family in the business, she would not have applied for the appointment of others as guardians. On October 4, 1952, a partnership deed was drawn up between Bachhulal on the one hand and the minors represented by the said four guardians on the other. If Banarsibai was the representative of the family in the business, this document would not have come into being Banarsibai also had no place in another partnership deed which was executed on March 27, 1953, between Venkatlal represented by the aforesaid guardians and Bachhulal. The evidence, therefore, demonstrates beyond any reasonable doubt that Banarsibai was nowhere in the picture and that Bachhulal carried on the business of the Sugar mills on behalf of the two families. Nor is there any evidence to show that from 1943 till the assessment year the guardians of the minors appointed by the District and Sessions Judge, Jaora, in 1946 representing the minors entered into a partnership with Bachhulal. The partnership deeds of 1952 and 1953 were subsequent to the order of assessment and they contain only self serving statements and they cannot, in the absence of any evidence, sustain the plea of earlier partnership. Indeed, the guardians were only appointed for the properties situated within the jurisdiction of the District Judge, Jaora, and they could not act as guardians in respect of the properties outside the said jurisdiction. If they were acting as partners with Bachhulal, their names would have been mentioned either in the accounts or in the relevant documents pertaining to the business. The conflicting version given by the assessee in regard to person or persons who actually represented the family in the partnership in itself indicates the falsity of the present version. It must, therefore, be held that the Court guardians did not enter into a partnership with Bachhulal. But, Venkatlal became a major on December 13, 1949, i.e., during the accounting year 1949 50. On October 17, 1951, an application for registration was received by the Income tax Officer 498 signed by Venkatlal and Bachulal who are shown as partners representing their respective joint families. The return of income submitted along with the application for registration was signed by Venkatlal on August 29, 1951. After Venkatlal became a major, there was no obstacle in his representing his branch of the family, in the partnership. Indeed, it was conceded in the High Court that there was a partnership from December 13, 1949, when Venkatlal, attained majority. Having regard to the said circumstances and the concession, we must hold that from December 13, 1949, the business was carried on in partnership between Venkatlal, representing his branch of the family, and Bachhulal, representing his branch of the family. In the result we set aside that part of the finding of the High Court holding that the partnership business was carried on by the representatives of the two families after the death of Nandlal, but confirm the finding to the extent that such a partnership came into existence only after December 13, 1949. In this view, we answer the two questions referred to the High Court as under: (1)For the assessment year 1950 51 the status of the, assessee was that of a firm within the meaning of section 16 (1)(b) of the Income tax Act, 1922. (2)The Tribunal misdirected itself in law in reaching the conclusion that the parties could not be regarded as partners. In the result the appeals are dismissed. But as the respondent failed in its main contentions, the parties will bear their own costs in this Court. Appeals dismissed.

A joint Hindu family consisting of two branches owned a sugar mill. After partition, the two kartas entered into a partnership in 1943, to carry on the business of the sugar mill. The two partners represented the respective joint families, and the partnership deed provided that the death of any of the parties shall not dissolve the partnership and either the legal heir or the nominee of the deceased partner should take his place. One of the kartas died in 1945 leaving as members of his branch of the family, three widows and two minor sons. The other partner continued the business of the sugar mill in the firm name. For the assessment year 1950 51, the assessee (respondent firm) applied for registration on the basis of the partnership agreement of 1943. The Income tax Officer, Appellate Assistant Commissioner and the Tribunal held that there was no partnership between the members of the two families after the death of one of the kartas. On a reference to the High Court, it was held that the partner ship business was carried on by the representatives of the two families after the dent), of one of the kartas. In the appeal to this Court, on the question as , to whether during the assessment year 19 50 51, the assessee, was a firm within the meaning of section 16(1) of the Income tax Act, 1922, or an association of persons. HELD: The High Court was wrong in its finding. But, as a result ,of the concession by the appellant, that there was a partnership from 13th December 1949, when one of the minor sons had become a major, the status of the assessee was that of a firm for the assessment year 1950 51. [498B] A joint Hindu family as such cannot be a partner of a firm, but it may through its karta enter into a partnership with the karta of another family. [495H] Kshetra Mohan Sanyasi Charan Sadhukhan v, Commissioner of Excess Profits Tax, [19541 S.C.R. 268. followed. A widow, though a member of a joint family, cannot become its manager. [495B] Commissioner of Income tax, C.P. & Berar vs Seth Lakshmi Narayan Raghunathdas, and Pandurang Dakhe vs Pandurang Gorle. I.L.R. overruled. Therefore, in the instant case, when one of the kartas died, the partnership had come to an end. There was no scope for applying section 42(c) of the Partnership Act, 1932, because, the section is applicable only to a partnership with more than two partners. In such a case. if one of them dies, the firm is dissolved, but if there is a contract to 488 489 the contrary, the surviving partners will continue the firm. On the other hand, if there are only two partners and one of them dies, the firm automatically comes to an end and, thereafter, there is no partnership for a third party to be introduced. Section 31, which deals with the validity of a contract between the partners to introduce a third party into the partnership without the consent of all the existing partners, presupposes the subsistence of a partnership and does not apply to a partnership of two partners, which is dissolved by the death of one of them. [492E H] Hansraj Manot vs Messrs, Gorak Nath Pandey, , disapproved. Further, there was no evidence that the representatives of the two families constituted a new partnership and carried on the business of the sugar mill before 13th December 1949, when, it was conceded a new partnership had come into existence.

Appeal No. 459 of 1965. Appeal by special leave from the judgment and order dated July 14, 1964 of the Punjab High Court in First Appeal from Order No.1 E of 1964. Bishan Narain, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. section section Shukla, for respondent No. 1. The Judgment of the Court was delivered by Wanchoo,J. This is an appeal by special leave from the judgment of the Punjab High Court. In the general election held in 1962 for Parliament (House of the People), the appellant was elected from the Sangrur parliamentary. constituency. Pritam Singh respondent was also one of the contesting candidates but lost in the election. Thereupon he filed an election petition against the appellant challenging his election on a number of grounds. In the present appeal we are only concerned with one ground, and that was that the nomination papers of one of the candidates for the ,election, namely, Wazir Singh, had been rejected improperly by the returning officer. Wazir Singh had filed three nomination papers; with one of them he had attached a copy of a part of the electoral roll. He attached no such copy with the other two nomination papers. When the nomination papers were being scrutinised, an objection was taken to the validity of the nomination papers. The returning officer first took up the nomination paper with which a copy of part of the roll had been filed and rejected it on the ground that the name of the parliamentary constituency and the name of the village and the assembly constituency and the part number of the electoral roll of the candidate was not mentioned also because the name of the parliamentary constituency (House of the People) of proposer was not given. After rejecting this nomination paper, the returning offices took up the other two nomination papers and rejected them on the ground that a copy of the electoral roll of the constituency concerned or of the relevant part thereof or a certified 545 copy of the relevant entries had not been filed along with these nomination papers. It may be added that the returning officer refused to look into the copy of the part of the roll which Wazir Singh had filed along with his nomination paper which the returning officer had already rejected before he took up the other nomination papers. The main contention of respondent Pritam Singh in the election petition was that the returning officer was wrong in not looking into the copy of the part of the roll which had been filed with the first nomination paper of Wazir Singh and that merely because that nomination paper had been rejected, the returning officer was not precluded from looking into the copy of the part of the roll which had been produced with that nomination paper for the purpose of scrutiny of the other two nomination papers. The appellant on the other hand contended that the nomination papers had been rightly rejected, and this contention was based on three points raised on his behalf, namely (i) that a copy of the electoral roll of that constituency or a relevant part thereof or a certified copy of the relevant entries of such roll should have been produced with each nomination paper separately; (ii) in any case the copy produced should have been of the parliamentary constituency and not of the assembly constituency; and (iii) that the copy produced of the part of the roll was not a complete copy of the part and therefore was not a compliance with the requirements of section 33 (5) of the Representation of the People Act, No. 43 of 1950, (hereinafter referred to as the Act). The Election Tribunal seems to have taken the view that the copy filed along with the first nomination paper could not be looked into when the returning officer came to scrutinise the other nomination papers, even if it might be assumed to be a copy of the parliamentary electoral roll. It further held that even if the copy could be looked into, it was not a complete copy and therefore there was no compliance with section 33 (5) of the Act and in consequence the Tribunal held that the returning officer was justified in rejecting the nomination papers notwithstanding the provisions of section 36 (4) of the Act. Pritam Singh then went in appeal to the High Court. The High Court held that the returning officer was wrong in not looking into the copy which had been produced along with the first nomination paper, and that the copy produced, though it was apparently of an assembly constituency, could also be taken to be a copy of the parliamentary roll. Lastly on the question whether the copy produced was a complete copy or not, the High Court held that the copy actually produced, though it admittedly did not contain certain pages, was sufficient for the purposes of section 33 (5) of the Act. In this view, the High Court held that one of the nomination papers of 546 Wazir Singh was improperly rejected and in consequence of that the result of the election was materially affected. It therefore set aside the election. The High Court having refused to grant a certificate, the appellant applied to this Court for special leave which was granted; and that is how the matter has come before us. The same three points which were urged before the Tribunal on behalf of the appellant have been raised before us. In the first place it is urged that the necessary copy required under section 33 (5) of the Act must be produced with every nomination paper, and that it is not enough where more nomination papers than one are filed that a copy should have been filed with only one of them. Secondly it is urged that the copy produced was of the assembly constituency while it should have been of the parliamentary (House of the People) constituency. Lastly the argument is that in any case the copy produced was not complete and therefore there was no compliance with section 33 (5) of the Act. The returning officer therefore was justified in rejecting the nomination paper under section 36 (2) (b) of the Act and that section 36 (4) did not apply in the circumstances of the case. We shall deal with these points seriatim. Section 32 at the relevant time provided that "any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act. " Section 4 (d) of the Act requires that in the case of any other seat for the House of the People besides those mentioned in cls. (a), (b) and (c) of that section, a person has to be an elector for any parliamentary constituency (House of the People) to be entitled to stand for election to the House of the People. It is with this qualification alone that we are concerned in the present appeal. "Elector" is defined in section (2) (e) of the Act as meaning "in relation to a constituency a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950." Therefore if a person is an elector in a parliamentary (House of the People) constituency and is not subject to any disqualification he can stand for election to the House of the People from any constituency. Then we come to section 33 (5). The object of this provision obviously is to enable the returning officer to check whether the person standing for election is qualified for the purpose. The electoral roll of the constituency for which the returning officer is making scrutiny would be with him, and it is not necessary for a candidate to produce the copy of the roll of that constituency. But where the candidate belongs to another constituency the returning officer would not have the roll of that other constituency with him and therefore the provision contained in section 33 (5) has been made by the legislature to enable the returning officer to check that the candidate is qualified 547 for standing for election. For that purpose the candidate is given the choice either to produce a copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper. Naturally where the candidate is standing for a parliamentary constituency (House of the People) he will have to file a copy of the roll of some parliamentary constituency. The argument on behalf of the appellant is that under the proviso to section 33(6) a candidate is entitled to file upto four nomination papers and therefore when section 33(5) says that a copy would be filed with the nomination paper it requires that one copy should be filed with each nomination paper and if that has not been done there is no compliance with section 33(5). Section 33(5) does not require that a copy must be filed with each nomination paper for, the candidates is given the alternative to produce before the returning officer such copy at the time of the scrutiny. So the candidate need not file any copy with the nomination paper and it is enough if he has a copy in his possession which he produces before the returning officer at the time of the scrutiny. Further there is nothing in section 33(5) which requires that if a candidate has (say) filed four nomination papers he should have four copies with him to produce before the returning officer at the time of the scrutiny. It would in our opinion be enough if he has one copy with him at the time of the scrutiny and shows it again and again as each nomination paper is taken up for scrutiny by the returning officer. We see no sense in holding that. in such a situation the candidate should arm himself with four copies for the purpose of showing the copy to the returning officer at the time of scrutiny. The same copy in our opinion can be produced again and again before the returning officer as he takes up the scrutiny of each of the nomination papers filed on behalf of a candidate. If that is so we see no difficulty in holding that where a number of nomination papers have been filed and a copy has been filed with one of them, that is enough. Again we see nothing in section 33(5) which prevents a returning officer from looking at the copy filed with one nomination paper, even after that nomination paper has been rejected or with a nomination paper which is vending before him for scrutiny, when he comes to deal with other nomination papers. As we have said before, the purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers. It may be that for certain purposes each nomination paper stands by itself, but so far as filing of a copy with a nomination paper under section 33(5) is concerned, we must look at the object behind the provision, and if that object is served by filing a copy with one nomi 548 nation paper, we see no sense in requiring that where a number of nomination papers are filed there should be a copy with each, nomination paper. There is nothing in section 33(5) which prevents, them returning officer from looking at a copy filed with a nomination paper which has been rejected, or which is still to be scrutinised for the purpose of satisfying himself when he takes up the other. nomination papers that the candidate is qualified to stand. Nor has any rule been shown to us which in terms prevents the returning officers from looking into a copy which has been filed with a nomination paper (which might have already been rejected) for the purpose of scrutinising other nomination papers of the same candidate. If the purpose of section 33(5) can be served by the production of one copy at the time of scrutiny when it has not been filed with the nomination paper, we do not see why that purpose could not be served by filing a copy with one nomination paper where more nomination papers than one have been filed by the same candidate. We therefore agree with the High Court that the returning officer was wrong in not looking at the copy filed with one nomination paper when he was dealing with other nomination papers of Wazir Singh. This brings us to the second point raised before us, namely, that the copy filed was not of the parliamentary (House of the People) constituency but of the assembly constituency. This contention also has no force. If we look at the Representation of the People Act, 1950 we find that Part III thereof provides for the preparation of electoral rolls for assembly constituencies. So far as parliamentary constituencies (House of the People) are concerned, section 13D provides inter alia that the electoral roll for every parliamentary constituency shall consist of the electoral rolls of so much of the assembly constituencies as are comprised within that parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency. It is clear therefore that the electoral roll for a parliamentary constituency is no other than the electoral roll for the assembly constituencies comprised within that parliamentary constituency. It is not in dispute that the electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein. Therefore if a candidate files a copy of the electoral roll of an assembly constituency, that copy is sufficient to show that he is an elector in the parliamentary constituency, in which that assembly constituency is included. The argument that the copy filed in the present case did not comply with section 33(5) as it was not a copy of the parliamentary constituency must therefore fail. The copy was of an assembly constituency in this case; and if the candidate was an elector in the assembly constituency he would be an elector in the parliamentary (House of the People) constituency which includes 549 that assembly constituency. The High Court therefore was right in rejecting the contention that the copy of the roll of the parliamentary (House of the People) constituency was not filed. This brings us to the last point raised on behalf of the appellant, namely, that the copy filed was not a complete copy and therefore there was no compliance with section 33(5) of the Act. It is not in dispute that the copy filed was not a complete copy. The appellant produced a complete copy of that part of the roll and that showed that pages 19 to 22 and page 25 of that part of the roll were not filed by Wazir Singh. Now section 33 (5) gives three options to a candidate in the matter of filing a copy. He may file either a copy of the electoral roll which means a copy of the entire electo ral roll of the parliamentary (House of the People) constituency, or a copy of the relevant parts thereof, which means the whole of the parts concerned. Under the Registration of Electors Rules, 1960 (hereinafter referred to as the Rules), it is provided by r. 5 that "the roll shall be divided into convenient parts which shall be numbered consecutively". Therefore when section 33(5) refers to a copy of the relevant parts thereof, it means a part as defined in r. 5 above. Besides these two alternatives, a candidate has a third alternative, namely, the production of certified copies of the entries of his name and the name of the proposer from any roll. In the present case, the candidate Wazir Singh chose the second alternative, namely, he produced a copy of the relevant part thereof. The part in question produced in this case was part IV of the Simla legislative assembly electoral roll. Section 33(5) therefore required the candidate (namely, Wazir Singh) to produce the whole of this part. It is not in despute that he did not produce the whole of this part and the question is whether his failure to do so would result in the rejection of his nomination paper. To decide this question it is necessary to refer to the Rules. Rule 10 requires that "as soon as the Roll for a constituency is ready, the registration officer shall publish it in draft by making a copy thereof available for inspection and displaying a notice in form 5." Under r. II, the registration officer is required to give further publicity to the roll and to the notice in form 5. There after r. 12 provides for claims for the inclusion of a name in the roll and objections to an entry therein. After such claims and objections have been made, the registration officer has to consider them under r. 18. Under r. 19, he gives a hearing if necessary and thereafter he orders the inclusion of names in the roll or exclusion of ' names from the roll under r. 20. Then under r. 22, the registration officer has to prepare a list of amendments to carry out his decisions under ff. 18, 20 and 21 and he may correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll. He then publishes the roll together with the list of 550 amendments by making a complete copy thereof available for inspection, and displaying a notice in form 16. On such publication the roll together with the list of amendments shall be the electoral roll of the constituency. The scheme of these Rules therefore, is that a draft is first prepared. Thereafter claims and objections are disposed of. If any claim is admitted, the name is included in the roll, if any objection is allowed the name already in the draft roll (or may be in an earlier amendment) is deleted. This inclusion or deletion is made by publishing amendments to the roll and thereafter the draft roll along with one or more amendments becomes the electoral roll of the constituency. It will be seen from this that where a name is excluded on an objection being allowed, the name is not scored out. What the rule provides is that deletion of a name from a draft or even from an earlier amendment made by inclusion by the registration officer, is included in the list of amendments published Under r. 23, an appeal is allowed from any decision of the registration officer including a name or excluding a name, so that where the registration officer includes a name after hearing a claim that is subject to an appeal and the appellate officer may reject the claim whereupon the amendment made by the registration officer by including a name may fall through. Under sub r. (5) of r. 23 of the Rules, the registration officer is given power to cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the appellate officer. This shows that when section 33 (5) requires that a copy of the relevant part of the roll may be filed or produced the copy is to be a complete copy along with all amendments, for it may be that even though a name may be included in the first amendment by the registration officer it may be excluded in the second amendment if the appellate officer has rejected the claim. We have already said that the object of producing the copy under section 33(5) is to enable the returning officer to check whether the candidate and the proposer are qualified or not, one for the purpose of standing and the other for the purpose of proposing. In order to check this, the returning officer must have a complete copy of the relevant part. If the copy is not a complete copy it is possible that a name which may have been included in the draft or in the first amendment may have been excluded in the second amendment made on the basis of an order of the appellate officer. Therefore to enable the returning officer to decide whether, a candidate,date is qualified to stand or whether a proposer is qualified to propose he must have a complete copy of the relevant part of the. roll. If he has not a complete copy he will not be able to decide whether the candidate or the proposer has the necessary qualification. In the present case it is not in dispute that Wazir Singh did not produce a complete copy of Part IV of the roll. Part IV consisted 551 of 25 pages; of these Wazir Singh did not produce pages 19 to 22 and page as appears from the complete copy of the roll filed by the appellant contained a second list of amendments. It is true that Wazir Singh 's name did appear in the first amendment at No. 1853; but that as we have already shown was not conclusive for the second amendment which was not produced might have deleted that name. Therefore the copy produced by Wazir Singh not being complete was not sufficient to enable the returning officer to decide whether he was qualified to stand or not for his name might have been deleted in the second list of amendments in which case he would not have been qualified. It is true that in actual fact it appears from the copy which was produced by the appellant before the Tribunal that Wazir Singh 's name was not deleted in the second list of amendments; but that appears from the copy produced by the appellant before the Tribunal and not from the copy produced by Wazir Singh before the returning officer. Section 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that pur pose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof. To such a case section 36(4) has no application. That provision is to the effect that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. But the non production of a complete copy of the relevant part in our opinion is a defect of a substantial character for it makes it impossible for the returning officer to decide whether the candidate s qualified or not. Qualification for standing for election is a matter of substantial character. We are therefore of opinion that the High Court was not right in the view it took that the production of an incomplete copy of the relevant part was not a defect of a substantial character which would make the nomination paper liable to be rejected. The fact that the returning officer rejected the nomination paper on some other ground is of no consequence. If there was in truth a defect of a substantial character in the matter of compliance with section 33 of the Act, the nomination paper was liable to be rejected, and if it was so rejected, rejection would be proper whatever may have been the reason given by the returning officer. In the present case we are of the opinion that the production of a copy of the electoral roll which is incomplete is a defect of a substantial character. This defect will invalidate all the nomination papers. The nomination papers of Wazir Singh were rightly rejected by the returning officer, though he gave different reasons for doing so. The appeal therefore succeeds and is hereby allowed with costs. The election petition is dismissed. Pritam Singh, respondent, will pay the costs. Appeal allowed.

The appellant 's election to Parliament was challenged by the first respondent on the ground that the nomination papers of the third candidate, W, had been wrongly rejected by the returning officer and this had materially affected the result of the election. We had filed three nomination papers with one only of which he had filed a copy of the electoral roll of the assembly constituency in purported compliance with section 33(5) of the Representation of the People Act, 1950. The nomination paper with which W had filed the said copy was rejected on account of technical defects; the other two were rejected because no such copy was filed with them. The Election Tribunal dismissed the first respondent 's petition holding that the returning officer had rightly rejected the nomination papers of W. The High Court took the opposite view and set aside the election. The appellant came to this Court by certificate and contended that W had not complied with section 33(5) because (i) under that section a copy of the electoral roll must be produced with every nomination paper, (ii) W had filed a copy of the electoral roll of the assembly constituency and not of the Parliamentary constituency, (iii) the copy produced was not a complete copy of the relevant 'part ' of the electoral roll. HELD : (i) The returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers filed by W when dealing with the other nomination papers filed by him. Section 33(5) does not require that a copy must be filed with each nomination paper or that any copy should be filed at all, for the candidate is given the alternative to produce before the returning officer such copy at the time of scrutiny. The purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers by the said candidate. [547 F 548 D] (ii) The electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein. Therefore if a candidate files a copy of the electoral roll of an assembly constituency that copy is sufficient to show that he is an elector in the parliamentary constituency in which that assembly constituency is included. W had filed copy of the assembly constituency in which he was recorded as an elector and the High Court was right in rejecting the contention based on the fact that the copy of the roll of the parliamentary constituency was not filed. [548 G, H] 544 (iii) Under r. 5 of the Registration of Electors Rules, 1960 it is provided that "the roll shall be divided into convenient parts which shall be numbered consecutively". When a. 33(5) refers to a copy of the relevant parts of the electoral roll it means a part as defined in r. 5. In producing not the full part but only a portion of the electoral roll in which he was recorded as an elector W did fail to comply with the requirements of section 33(5). A complete copy would carry the various amendments made in the roll and enable the returning officer to see whether the name of the candidate continued in the roll for the whole of the relevant period. The High Court was not right in its view that the production of an incomplete copy was not a defect of substantial character which would make the nomination paper liable to be rejected. The nomination papers of W were rightly rejected by the returning officer though for different reasons. [549 D; 551 E F]

N: Criminal Appeal No. 15 of 1951. Appeal under articles 132(1) and 134(1)(c) of the Constitu tion of India against the Judgment and Order dated 28th February, 1951, of the High Court of Saurashtra at Rajkot (Shah C.J. and Chhatpar J.) in Criminal Appeal No. 162 of 1950, The material facts appear in the Judgment. S.L. Chibber (amicus curia ), for the appellant, B. Sen, for the respondent. 439 1952. February 27. The following Judgments were delivered. PATANJALI SASTRI C.J. This appeal raises questions under article 14 of the Constitution more or less similar to those dealt with by this Court in Criminal Appeal No. 297 of 1951, The State of West Bengal vs Anwar Ali Sarkar(1), and it was heard in part along with that appeal but was adjourned to enable the respondent State to file an affidavit explaining the circumstances which led to the enactment of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949 (No. XLVI of 1949), hereinafter referred to as the impugned Ordinance. As in the West Bengal case, the jurisdiction of the Special Court of Criminal Jurisdiction, which tried and convicted the appellant, was challenged on the ground that the impugned Ordinance, under which the Court was constitut ed, was discriminatory and void. The Objection was overruled by the Special Judge as well as by the High Court of Sau rashtra on appeal and the appellant now seeks a decision of this Court on the point. The impugned Ordinance purports to amend the Saurashtra State Public Safety Measures Ordinance (No. IX of 1948) which had been passed "to provide for public safety, mainte nance of public order and preservation of peace and tran quillity in the State of Saurashtra", by the insertion of sections 7 to 18 which deal with the establishment of Spe cial Courts of criminal jurisdiction in certain areas to try certain classes of offences in accordance with a simplified and shortened procedure. Section 9 empowers the State by notification to constitute Special Courts for such 'areas as may be specified in the notification and section 10 provides for appointment of Special Judges to preside over such courts. Section 11 enacts that the Special Judge shall try "such offences or classes of offences or such cases or classes of cases as the Government may, by general or special order in writing; direct", (1) Since reported as ; 57 57 440 Then follow provisions prescribing the procedure applicable to the trial of such offences. The only variations in such procedure from the normal procedure in criminal trials in the State consist of the abolition of trial by jury or with the aid of assessors and the elimination of the inquiry before commitment in sessions cases. Even under the normal procedure trial by jury is not compulsory unless the Govern ment so directs (sections 268 and 269 (1)). while assessors are not really members of the court and their opinion is not binding on the judge with whom the responsibility for the decision rests. Nor can the commitment proceeding in a sessions case be said to be an essential requirement of a fair and impartial, trial, though its dispensation may involve the deprivation of certain advantages which an accused person may otherwise enjoy. Thus the variations from the normal procedure are by no means calculated to imperil the chances of a fair and impartial trial. In exercise of the power conferred by sections 9, 10 and 11, the Government issued the notification No. H/35 5 C dated 9/11 February, 1950, directing that a Special Court shall be constituted for certain special areas and that it shall try certain specified offences which included offences under sections 302, 307 and 392 read with section 34 of the Indian Penal Code (as adapted and applied to the State of Saurashtra) for which the appellant was convicted and sen tenced. It is contended on behalf of the appellant that section 11 and the notification referred to above are discriminatory in that the offences alleged to have been committed by the appellant within the specified areas are required to be tried by the Special Judge under the special procedure, while any person committing the same offences outside those areas would be tried by the ordinary courts under the ordi nary procedure. It is also urged that sections 9 and 11 by empowering the State Government to establish a Special Court and to direct it to try under a special procedure such offences as may be notified by the Government, in effect, authorise the Government to 441 amend section 5 of the Criminal Procedure Code read with the Second Schedule (as adapted and applied to the State of Saurashtra), which provides that "all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained", and that delegation of such power to the executive Government was beyond the competence of a legislature and was, therefore, void. On the first point, many of the considerations which weighed with me in upholding the constitutionality of sec tion 5 (1) of the West Bengal Special Courts Act, which is in identical terms with section 11 of the impugned Act, apply a fortiori to the present case. The West Bengal case (1) arose out of a reference by the State Government of certain individual cases to the Special Court for trial and 1 there expressed the view that it was wrong to think that classification was something that must somehow be discovera ble in every piece of legislation or it would not be legis lation. That way of regarding classification, I pointed out, tended only to obscure the real nature of the problems for which we have to find solution. In the present case, howev er, the State Government referred not certain individual cases but offences of certain kinds committed in certain areas and so the objection as to discriminatory treatment is more easily answered on the line of reasoning indicated in my judgment in the West Bengal case (1). Again, the varia tions from the normal procedure authorised by the impugned Ordinance are less disadvantageous to the persons tried before the Special Court than under the West Bengal Act. It was, however, said that any variation in procedure which operates materially to the disadvantage of such persons was discriminatory and violative of article 14. On the other hand, it was contended on behalf of the respondent State that, in the field of personal liberty, the only constitu tional safeguards were those specifically. provided in articles 20 to 22, and 'this Court having held in (1) [1952] S.C.R.284. 442 Gopalan 's case (1) that any procedure prescribed by law satisfies the requirements of article 21 (the only article relevant here) the impugned Ordinance which prescribes a special procedure for trial of offences falling within its ambit could not be held to be unconstitutional. Reliance was placed on a decision of a Full Bench of the Hyderabad High Court (Abdur Rahim and others vs Joseph A. 'Pinto and others (2) which seems to lend some support to this view. I am, however, of opinion that neither of these extreme con tentions is sound. All legislative differentiation is not necessarily dis criminatory. In fact, the word "discrimination" does not occur in article 14. The expression "discriminate against" is used in article 15 (1) and article. 16(2), and it means, according to the Oxford Dictionary, "to make an adverse distinction with regard to; to distinguish unfavourably from others". Discrimination thus involves an element of unfa vourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This pre sumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies. The power of the State to regulate criminal trials by constituting different courts with different procedures according to the needs of different parts of its territory is an essential part of its police power (cf. Missouri vs Lewis)(3). Though the differing (1) ; (3) 101 U.S.22 (2) A.I.R. 1951 Hyderabad ll. 443 procedures might involve disparity in the treatment of the persons tried under them, such disparity is not by itself sufficient, in my opinion, to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands as, for instance, when it amounts to a denial of a fair and impar tial trial. It is, therefore, not correct to say that arti cle 14 provides no further constitutional protection to personal liberty than what is afforded by article 21. Notwithstanding that its wide general language is greatly qualified in its practical application by a due recognition of the State 's necessarily wide powers of legislative clas sification, article 14 remains an important bulwark against discriminatory procedural laws. In the present case, the affidavit filed on behalf of the respondent State by one of its responsible officers states facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nosecutting and murder by marauding gangs of dacoits in certain areas of the State, and these details support the claim that "the securi ty of the State and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places in separate courts of law expeditiously. " The statement concludes by pointing out that the areas specified in the notification were the "main zones of the activities of the dacoits as mentioned above. " The impugned Ordinance having thus been passed to combat the increasing tempo of certain types of regional crime, the two fold classification on the lines of type and territory adopted in the impugned Ordinance, read with the notifi cation issued thereunder, is, in my view, reasonable and valid, and the degree of disparity of treatment involved is in no way in excess of what the situation demanded. On the second point, the appellant 's learned counsel claimed that the majority view in In re The , etc.(1) supported his contention. He attempted to make this out by piecing together certain dicta (1) ; 444 found in the several judgments delivered in that case. While undoubtedly certain definite conclusions were reached by the majority of the Judges who took part in the decision in regard to the constitutionality of certain specified enact ments, the reasoning in each case was different and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of other cases. I have there expressed my view that legislatures in this country have plenary authori ty to delegate their power to make laws to subordinate agencies of their choice and such delegation, however inex pedient or undesirable politically, is constitutionally competent. I accordingly reject this contention. It follows that the Special Judge had jurisdiction to try the appellant and the persons accused along with him. As the majority concur in overruling the preliminary objection the appeal will be heard on the merits. FAZL ALI J. This is an appeal by one Kathi Raning Rawat, who has been convicted under sections 302, 307 and 392. read with section 34 of the Indian Penal Code and sentenced to death and to seven years ' rigorous imprison ment. The appellant was tried by a Special Court constitut ed under the Saurashtra State Public Safety Measures(Third Amendment) Ordinance, 1949 (Ordinance No. LXVI of 1949), which was issued by the Rajpramukh of Saurashtra on the 2nd November, 1949, and his conviction and sentence were upheld on appeal by the State High Court. He has preferred an appeal to this Court against the decision of the High Court. The principal question which arises in this appeal is whether the Ordinance to which reference has been made is void under article 13(1) of the Constitution on the ground that it violates the provisions of article 14. It appears that on the 5th April, 1948, the Rajpramukh of Saurashtra State promulgated an Ordinance called the Criminal Proce dure Code, 1898 (Adaptation) Ordinance, 1948 (Ordinance No. XII of 445 1948), by which "the Criminal Procedure Code of the Dominion of India as in force in that Dominion on the 1st day of April, 1948" was made applicable to the State of Saurashtra with certain modifications. In the same month, another Ordinance called the Saurashtra State Public Safety Measures Ordinance (Ordinance No. IX of 1948) was promulgated, which provided among other things for the detention of persons acting in a manner prejudicial to public safety, maintenance of public order and peace and tranquillity in the State. Subsequently, on the 5th November, 1949, the Ordinance with which we are concerned, namely, the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, was promulgated, which purported to amend the previous Ordinance by inserting in it certain provisions which may be summa rised as follows : Section 9 of the Ordinance empowers the State Government by notification in the Official Gazette to constitute Spe cial Courts of criminal jurisdiction for such area as may be specified in the notification. Section 11 provides that a Special Judge shall try such offences or classes of offences or such cases or classes of cases as the State Government may, by general or special order in writing, direct. Sec tions 12 to 18 lay down the procedure for the trial of cases by the Special Judge, the special features of which are as follows : (1) The Special Judge may take cognizance offences without the accused being committed to his court for trial; (2) There is to be no trial by jury or with the aid of assessors; (3) The Special Judge should 'ordinarily record a memo randum only of the substance of the evidence of each wit ness; and (4) The person convicted has to appeal to the High Court within 15 days from the date of the sentence. 446 The Ordinance further provides that the provisions of sections 491 and 526 of the Code of Criminal Procedure shall not apply to any person or case triable by the Special Judge, and the High Court may call for the record of the proceedings of any case tried by a Special Judge and may exercise any of the powers conferred on an appellate court by sections 423, 426, 427 and 428 of the Code. From the foregoing summary of the provisions of the Ordinance, it will appear that the difference between the procedure laid down in the Criminal Procedure Code and the procedure to be followed by the Special Judge consists mainly in the following matters: (1) Where a case is triable by a court of session, no commitment proceeding is necessary, and the Special Judge may take cognizance without any commitment; (2) The trial shall not be by jury or with the aid of assessors; (3) Only a memorandum of the substance of the evidence of. each witness is ordinarily to be recorded; (4) The period of limitation for appeal to the High Court is curtailed; and (5) No court has jurisdiction to transfer any case from any Special Judge, or to make an order under section 491 of the Criminal Procedure Code. It appears that pursuant to the provisions contained in sections 9, 10 and 11 of the Ordinance, the State Government issued a Notification No. H/35 5 C, dated the 9/11th Febru ary, 1951, directing the constitution of a Special Court for certain areas mentioned in a schedule attached to the Noti fication and empowering such court to try the following offences, namely, offences under sections 183, 189, 190, 212, 216, 224, 302, 304, 307, 323 335, 341 344, 379 382, 384 389 and 392 402 of the Indian Penal Code, 1860, as adapted and applied to the State of Saurashtra, and most of t, be offences under the. Ordinance of 1948. 447 In the course of the hearing, an affidavit was filed by the Assistant Secretary in the Home Department of the Sau rashtra Government, stating that since the integration of different States in Kathiawar in the beginning of 1948 there had been a series of crimes against public peace and that had led to the promulgation of Ordinance No. IX of 1948, which provided among other things for detention of persons acting in a manner prejudicial to public safety and mainte nance of public order in the State. Notwithstanding this Ordinance, the crimes went on increasing and there occurred numerous cases of dacoity, murder, nosecutting, ear cutting, etc. for some of which certain notorious gangs were respon sible, and hence Ordinance No. LXVI of 1949 was promulgated to amend the earlier Ordinance and to constitute Special Courts for the speedy trial of cases arising out of the activities of the dacoits and other criminals guilty of violent crimes. As has been already indicated, the main contention advanced before us on behalf of the appellant is that the Ordinance of 1949 violates the provisions of article 14 of the Constitution, by laying down a procedure which is dif ferent from and less advantageous to the accused than the ordinary procedure laid down in the Criminal Procedure Code, and thereby discriminating between persons who are to be tried under the special procedure and those tried under the normal procedure. In support of this argument, reliance is placed on the decision of this court in The Slate of West Bengal vs Anwar Ali Sarkar and Gajen Mali (Cases Nos. 297 and 298 of 1951) (1), in which certain provisions of the West Bengal Special Courts Act, 1949, have been held to be unconstitutional on grounds similar to those urged on behalf of the appellant in the present ease. A comparison of the provisions of the Ordinance in question with those of the West Bengal Act will show that several of the objectionable features in the latter enactment do not appear in the Ordi nance, (1) ; 58 448 but, on the whole, I am inclined to think that that circum stance by itself will not afford justification for upholding the Ordinance. There is however one very important differ ence between the West Bengal Act and the present Ordinance which, in my opinion, does afford such justification, and I shall try to refer to it as briefly as possible. I think that a distinction should be drawn between"dis crimination without reason" and ' 'discrimination with rea son". The whole doctrine of classification is based on this distinction and on the well known fact that the circum stances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treat ment does not really arise as between persons governed by different conditions and different sets of circum stances. The main objection to the West Bengal Act was that it permitted discrimination "without reason" or with out any rational basis. Having laid down a procedure which was materially different from and less advantageous to the accused than the ordinary procedure, that Act gave uncon trolled and unguided authority to the State Government to put that procedure into operation in the trial of any case or class of cases or any offence or class of offences. There was no principle to be found in that Act to control the application of the discriminatory provisions or to correlate those provisions to some tangible and rational objective, in such a way as to enable anyone reading the Act to say : If that is the objective, the provisions as to special treatment of the offences seem to be quite suitable and there can be no objection to dealing with a particular type of offences on a special footing. The mere mention of speedier trial as the object of the Act did not cure the defect, because the expression "speedier trial" standing by itself provided no rational basis of classification. It was merely a description of the result sought to be achieved by the application of the special procedure laid down in the Act ' and afforded no help in determining what cases required speedier trial. 449 As regards the present Ordinance, we can discover a guiding principle within its four corners, which cannot but have the effect of limiting the application of the special procedure to a particular category of offences only and establish such a nexus (which was missing in the West Bengal Act) between offences of a particular category and the object with which the Ordinance was promulgated, as should suffice to repel the charge of discrimination and furnish some justification for the special treatment of those of fences. The Ordinance, as I have already stated, purported to amend another Ordinance, the object of which was to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State. It was not disputed before us that the preamble of the original Ordinance would govern the amending Ordinance also, and the object of promulgating the subsequent Ordinance was the same as the object of promulgating the original Ordinance. Once this is appreciated, It is easy to see that there is something in the Ordinance itself to guide the State Govern ment to apply the special procedure not to any and every case but only to those cases or offences which have a ra tional relation to, or connection with, the main object and purpose of the Ordinance and which for that reason become a class by themselves requiring to be dealt with on a special footing. The clear recital of a definite objective furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the provi sions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquillity. Thus, under section 11, the State Government is expected to select only such offences or class of offences or class of cases for being tried by the special court in accordance with the special procedure, as are calculated to affect public safety, maintenance of public order, etc., and under section 9, the use of the special procedure must necessarily be confined to only disturbed areas or those areas where adoption of 450 public safety measures is necessary. That this is how the Ordinance was intended to be understood and was in fact understood, is confirmed by the Notification issued on the 9/11th February by the State Government in pursuance of the Ordinance. That Notification sets out 49 offences under the Indian Penal Code as adapted and applied to the State and certain other offences punishable under the Ordinance, and one can see at once that all these offences directly affect the maintenance of public order and peace and tran quillity. The Notification also specifies certain areas in the State over which only the special court is to exercise jurisdiction. There can be no dispute that if the State Legislature finds that lawlessness and crime are rampant and there is a direct threat to peace and tranquil lity in certain areas within the State, it is competent to deal with offences which affect the maintenance of public order and preservation of peace and tranquillity in those areas as a class by themselves and to provide that such offences shall be tried as expeditiously as possible in accordance with a special procedure devised for the purpose. This, in my opinion, is in plain language the rationale of the Ordinance, and it will be going too far to say that in no case and under no circumstances can a legislature lay down a special procedure for the trial of a particular class of offences, and that recourse to a simplified and less cumbrous procedure for the trial of those offences, even when abnormal conditions prevail, will amount to a violation of article 14 of the Constitution. I am satisfied that this case is distinguishable from the case relating to the West Bengal Act, but I also feel that the legislatures should have recourse to legislation such as the present only in very special circumstances. The question of referring individual cases to the special court does not arise in this appeal, and I do not wish to express any opinion on it. Certain other points were urged on behalf of the appel lant, namely, that the Ordinance suffers from excessive delegation of legislative authority, and that 451 the Rajpramukh had exceeded his powers in amending the provisions of the Criminal Procedure Code. These contentions were found to be devoid of all force and have to be reject ed. In the result, I would hold that the Saurashtra State Public Safety Measures (Third Amendment) Ordinance is not unconstitutional, and accordingly overrule the objection as to the jurisdiction of the special court to try the appel lant. MAHAJAN J. The principal point for decision in the appeal is whether section 11 of the Saurashtra State Public Safety Measures (Third Amendment) Ordinance (No. LXVI), 1949. which came into force on 2nd November, 1949, is hit by article 14 of the Constitution inasmuch as it mentions no basis for the differential treatment prescribed in the Ordinance for trial of criminals in certain cases and for certain offences. Section 11 of the Ordinance is in these terms : "A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct. " This section is in identical terms with section 5(1) of the West Bengal Special Courts Act (Act X of 1950). Section 5(1) of that Act provided as follows : "A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Govern ment may, by general or special order in writing, direct. " The question whether section 5(1) of the Bengal Act (X of 1950) was hit by article 14 of the Constitution was an swered in the affirmative by this court in The State of West Bengal vs Anwar Ali Sarkar etc.(1) In that case I was of the opinion that even if the statute on the face of it was not discriminatory, it was so in its effect and opera tion inasmuch as it vested in the executive government unregulated official discretion and therefore had to be adjudged unconstitutional. Section 11 of the Ordinance, like section 5(1) (1) ; 452 of the West Bengal Act, suggests no reasonable basis or classification either in respect of offences or in respect of cases. It has laid down no measure for the grouping either of persons or of cases or of offences by which meas ure these groups could be distinguished from those outside the purview of the special Act. The State Government can choose a case of a person similarly situate and hand it over to the special tribunal and leave the case of another person in the same circumstances to be tried by the procedure laid down in the Criminal Procedure Code. It can direct that the offence of simple hurt be tried by the special tribunal while a more serious offence be tried in the ordinary way. The notification in this case fully illustrates the point. Offence of simple hurt punishable with two years ' rigorous imprisonment is included in the list of offences to be tried by the Special Judge, while a more serious offence of the same kind punishable with heavier punishment under section 308 is excluded from the list. It is the mischief of section 11 of the Ordinance that makes such discrimination possible. To my mind, offences falling in the group of sections 302 to 308, Indian Penal Code. possess common characteristics and the appellant can reasonably complain of hostile dis crimination. I am therefore of the opinion that section 11 of the Ordinance is unconstitutional and the conviction of the appellant under the Ordinance by the special judge is bad and must be quashed. There will be a retrial of the appellant under the procedure prescribed by the Code of Criminal Procedure. The contention of the learned counsel for the State that the provisions of the Ordinance are in some respects distinguishable from the provisions of the West Bengal Special Courts Act cannot be sustained. Reference was made to section 9 of the Ordinance which is in these terms : "The Government of the United State of Saurashtra may by notification in the official gazette constitute Special Courts of criminal jurisdiction for such area as may be specified in the notification. " 453 This section is in the same terms as section 3 of the West Bengal Special Courts Act. It only empowers the State Government to constitute Special Courts for any area or for the whole of the State of Saurashtra in the like manner in which section 3 empowered the West Bengal Government to constitute special courts for the whole of the State or any particular area, It does not in any way limit or curtail the power conferred on the State Government by the provi sions of section 11. Reference was also made to the pream ble of the original Ordinance which uses the familiar con ventional phraseology: "An Ordinance to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra. " These words cannot limit the plain and unambiguous language of section 11 of the Ordinance which authorises the State Government to send any case or commit persons guilty of any offence to the special judge for trial by the procedure prescribed in the Ordinance. MUKHERJEA J. The appellant before us was tried,along with two other persons, by the Special Judge, Court of Criminal Jurisdiction, Saurashtra State, on charges of murder, at tempted murder and robbery under sections 302, 307 and 392 of the Indian Penal Code read with section 34. By his judgment dated 20th December, 1950, the Special Judge con victed the appellant on all the three charges and sentenced him to death under section 302 and to seven years ' rigorous imprisonment both under sections 307 and 392 of the Indian Penal Code. The conviction and sentences were upheld by the High Court of Saurashtra on appeal. The appellant has now come to this court on the strength of a certificate granted by the High Court under articles 132(1) and 134(1)(c) of the Constitution. The appeal has not been heard on its merits as yet. It was set down for hearing on certain preliminary points of law raised by the learned counsel for the appellant attacking the legality of the entire trial on the ground that section 11 of the Saurashtra Public 454 Safety Measures Ordinance No. XLVI of 1949 passed by the Rajpramukh of Saurashtra as well as the Notification issued by the State Government on 9/11th February, 1951, under which the Special Court was constituted and the trial held, were void and inoperative. The first and the main ground upon which the constitutional validity of the section and the notification has been assailed is that they are in conflict with the provision of article 14 of the Constitu tion. The other point raised is that the provision of section 11 the Ordinance is illegal as it amounts to delegation of essential legislative powers by the State Legislature to the Executive. So far as the first point is concerned, the learned counsel for the appellant has placed great reliance upon the majority decision of this court in two analogous appeals from the Calcutta High Court (being cases Nos. 297 and 298 of 1951)(1), where a similar question arose in regard to the validity of section 5 (1) of the West Bengal Special Courts Act, 1950. In fact, it was because of our pronouncement in the Calcutta appeals that it was considered desirable to have the present case heard on the preliminary points of law. It is not disputed that the language of section 11 of the Saurashtra Ordinance, with which we are now concerned, is identically the same as that of section 5 (1) of the West Bengal Special Courts Act. The wording of the section is as follows: "11. Jurisdiction of Special Judges A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct. " In the West Bengal Act there is a further provision em bodied in clause (2) of section 5 which lays down that no such direction as is contemplated by clause (1) could be given in respect of cases pending before ordinary criminal courts at the date when the Act came into force. No such exception has been made in the Saurashtra Ordinance. In the Calcutta cases referred (1) Since reported as ; 455 to above, the notification under section 5(1) of the West Bengal Act directed certain individual cases in which speci fied persons were involved to be tried by the Special Court and it was held by the High Court of Calcutta that section 5 (1) of the West Bengal Special Courts Act to the extent that it empowers the State Government to direct any case to be tried by Special Courts was void as offending against the provision of the equal protection clause in article 14 of the Constitution; and this view was affirmed in appeal by a majority of this court, With regard to the remaining part of section 5(1), which authorises the State Government to direct, "offences, classes of offences. or classes of cases" for trial by Special Courts, the majority of the Judges of the Calcutta High Court were of opinion that it was not obnoxious to article 14 of the Constitution. In the present case the notification, that was issued by the Sau rashtra State Government on 9/11th February, 1951, did not relate to individual cases. The notification constituted in the first place a Special Court in the areas specified in the schedule. It appointed in the next place a judge to preside over the Special Court and finally gave a list of offences with reference to appropriate sections of the Indian Penal Code which were to be tried by the Special Judge. If the view taken by the Chief Justice of the Cal cutta High Court and the majority of his colleagues is right, such notification and that part of section 11 of the Ordinance, under which it was issued, could not be chal lenged as being in conflict with article 14 of the Constitu tion. This point did come up for consideration before us in the appeals against the Calcutta decision with reference to the corresponding part of section 5 (1) of the West Bengal Act, but although a majority of this court concurred in dismissing the appeals, there was no such majority in the pronouncement of any final opinion on this particular point. In my judgment in the Calcutta appeals I was sceptical about the correctness of the view taken upon this point by the learned Chief Justice of the Calcutta High Court and the majority of his colleagues. The 59 456 consideration that weighed with me was that as the learned Judges were definitely of opinion that the necessity of speedier trial. , as set out in the preamble, was too elusive and uncertain a criterion to form the basis of a proper classification, the authority given by section 5 (1) of the Special Courts Act to the State Government to direct any class of cases or offences ' to be tried by the Special Court would be an unguided authority and the propriety of the classification made by the State Government that is said to be implied in the direction could not be tested with refer ence to any definite legislative policy or standard. Mr. Sen appearing for the State of Saurashtra, has argued be: fore us that in this respect the Saurashtra Ordinance stands on a different footing and he has referred in this connec tion to the preamble to the original ordinance as well as the circumstances which necessitated the present one. As the question is an important one and is not concluded by our previous decision, it merits, in my opinion, a careful consideration. It may be stated at the outset that the Criminal Procedure Code of India as such has no application to the State of Saurashtra. After the State acceded to the Indian Union, there was an Ordinance promulgated by the Rajpramukh on 5th of April, 1948, which introduced the provisions of the Criminal Procedure Code of India (Act V of 1898) with certain modifications into the Saurashtra State. Another ordinance, known as the Public Safety Measures Ordinance, was passed on the 2nd of April, 1948, and this ordinance, like similar other public safety measures obtaining in other States, provided for preventive detention, imposition of collective fines, control of essential supplies and similar other matters. On 11th of November, 1949, the present ordinance was passed by way of amendment of the Public Safety Measures Ordinance and inter alia it made provisions for the establishment of special courts. Section 9 of this Ordinance empowers the State Government to constitute spe cial courts of criminal.jurisdiction for such areas as may be specified in the notification. Section 10 relates to appointment. 457 of Special Judges who are to preside over such courts and section 11 lays down that the Special Judge shall try "such offences or classes of offences. . or classes of cases as the Government of United State of Saurashtra may, by general or special order in writing, direct. " The proce dure to be followed by the Special Judges is set out in sections 12 to 18 of the Ordinance. In substance the Spe cial Court is given the status of a sessions court, although committal proceeding is eliminated and so also is trial by jury or with the aid of assessors. The Special Judge has only to make a memorandum of the evidence and he can refuse to summon any witness if he is satisfied after examination of the accused that the evidence of such witness would not be material. Section 16 (1) curtails the period of limita tion within which an accused convicted by the Special Judge has to file his appeal before the High Court and clause (3) of the section provides that no court shall have jurisdic tion to transfer any case from any Special Judge or make any order under section 491 of the Criminal Procedure Code. The ordinance certainly lacks some of the most objectionable features of the West Bengal Act. Thus it has not taken away the High Court 's power of revision, nor does it expose the accused to the chance of being convicted of a major offence though he stood charged with a minor one. There is also no provision in the ordinance similar to that in the West Bengal Act which enables the court to proceed with the trial in the absence of the accused. But although the ordinance in certain respects compares favourably with the West Bengal Act, the procedure which it lays down for the Special Judge to follow does differ on material points from the normal procedure prescribed in the Criminal Procedure Code; and as these differences abridge the rights of the accused who are to be tried by the Special Court, and deprive them of cer tain benefits to which they would otherwise have been enti tled under the general law, the ordinance prima facie makes discrimination and the question has got to be answered whether such discrimination brings it in conflict with article 14 of the Constitution. 458 The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution have been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate. The consequence of such classification would un doubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection clause. Equal ity prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group, and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view. The legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differ ences made have no rational relation to the objectives of the legislation, that necessity of judicial interference arises. Section 11 of the Saurashtra Ordinance so far as it is material for our present purpose lays down that a Special Court shall try such offences or classes of offences. or classes of cases as the State Government may. direct". This part of the section undoubtedly contemplates a classi fication to be made of offences and cases but no classifica tion appears on the terms of the statute itself which merely gives an authority to the State Government to determine what classes of cases or offences are to be tried by the special tribunal. The question arises at the outset as to whether such statute is not on the face of it discriminatory as it commits to the discretion of an administrative body or officials the duty of making selection or classification for purposes of the legislation; and there is a still further question, namely, by what tests, if any, is the propriety of the administrative action to be adjudged and what would be the remedy of the aggrieved person if the 459 classification made by the administrative body is arbitrary or capricious ? It is a doctrine of the American courts which seems to me to be well founded on principle that the equal protection clause can be invoked not merely where discrimination ap pears on the express terms of the statute itself, but also when it is the result of improper or prejudiced execution of the law (1). But a statute will not necessarily be condem ned as discriminatory, because it does not make the classi fication itself but, as an effective way of carrying out its policy, vests the authority to do it in certain officers or administrative bodies. Illustrations of one class of such cases are to be found in various regulations in the U.S.A. which are passed by States in exercise of police powers for the purposes of protecting public health or welfare or to regulate trades, business and occupations which may become unsafe or dangerous when unrestrained. Thus there are regu lations where discretion is lodged by law in public officers or boards to grant or withhold licence to keep taverns or sell spirituous liquors(2), or other commodities like milk(3) or cigarettes(4). Similarly, there are regulations relating to appointment of river pilots(5) and other trained men necessary for particularly difficult jobs and in such cases, ordinarily, conditions are laid down by the statute, on compliance with which a candidate is consid ered qualified. But even then the appointment board has got a discretion to exercise and the fact of the candidate for a particular post is submitted to the judgment of the officer or the board as the case may be. It is true that these cases are of a somewhat different nature than the one we are dealing with; but it seems to me that the principle underly ing all these cases is the same. The whole problem is one of choosing the method by which the legislative policy is to be effectuated. As has been observed by Frankfurter J. in (1) Vide Weaver on Constitutional Law, p. 404. (2)Crowley vs Uhristensen; , (3) People of the State of New York vs Job. E, Van De Carr, 199 U.S.552. (4) Gundling vs Chicago, ; (5) Kotch vs Board of River Port Pilot Commissioners, 330 U.S.552. 460 Tinger vs Texas(1), "laws are not abstract propositions. but are expressions of policy arising out of specific difficulties addressed to the attainment of specif ic ends by the use of specific remedies. " In my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. After all "the law does all that is needed when it does all that it can, indicates a policy. and seeks to bring within the lines all similarly situated so far as its means allow(2) ' '. In such eases, the power given to the executive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute. The discretion that is conferred on official agencies in such circumstances is not an un guided discretion; it has to be exercised in conformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested. If the administra tive body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offend ing against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selec tion at its pleasure, the statute would be held on the face of it to be discriminatory irrespective of the way in which it is applied. This, it seems to me, is the true principle underlying the decision of the Supreme Court of America in Yick Wo vs Hopkins(3). The object of the ordinance of the City and County of San Francisco, which came up for consid eration in that case, was, as found by the court, not to regulate laundry business in that locality in the interests of the general public(4). The business was (1) ; at 147. (2) Vide Buck vs Belt, ; , 208. (3) (4) Vide the observations of Field J. in Crowley vs Chris tensen; , ,94. 461 harmless in itself and useful to the community. No policy was indicated or object declared by the legislature, but an uncontrolled discretion was given to the Board of Supervi sors who could refuse license at their pleasure to anybody carrying on laundry business in wooden buildings. The classification contemplated by the statute was an arbitrary classification depending on the caprice of the Board, and consequently it was condemned as discriminatory on the face of it;its application against the Chinese was a confirmation of the discriminatory character and the really hostile intention of the legislation. I would be inclined to think that the West Bengal case, which we have decided already, comes within the purview of this principle, as the desira bility of "speedier trial", which is hinted at in the pream ble to the West Bengal Act, is too vague, elusive and uncer tain a thing to amount to an enunciation of a definite policy or objective on the basis of which any proper classi fication could be made. the matter has been left to the unfettered discretion of the State Government which can classify offences or cases in any way they like without regard to any objective and as such the statute is open to the challenge of making arbitrary discrimination. The point that requires consideration is, whether the Saurashtra Ordinance presents any distinguishing features or occupies the same position as the West Bengal Act ? As has been stated already, section 11 of the Saurash tra Ordinance is worded in exactly the same manner as sec tion 5(1) of the West Bengal Special Courts Act; and that part of it, with which we are here concerned, authorises the State Government to direct any classes of offences or cases to be tried by the special tribunal. The State Government, therefore, has got to make a classification of cases or offences before it issues its directions to the Special Court. The question is, on what basis is the classification to be made ? If it depends entirely upon the pleasure of the State Government to make any classification it likes, with out any guiding principle at all. it cannot certainly be a proper classification, Which requires that a reasonable relation must exist 462 between the classification and the objective that the legis lation has in view. On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself, as I have said above, cannot be held to be discriminatory, though the action of the State Govern ment may be condemned if it offends against the equal pro tection clause, by making an arbitrary selection. Now, the earlier ordinance, to which the present one is a subsequent addition by way of amendment, was passed by the Rajpramukh of Saurashtra on 2nd April, 1948. It is described as an ordinance to provide for the security of the State, mainte nance of public order and maintenance of supplies and serv ices essential to the community in the State of Saurashtra. The preamble to the ordinance sets out the objective of the ordinance in identical terms. It is to be noted that the integration of several States in Kathiawar which now form the State of Saurashtra, was completed some time in Febru ary, 1948. It appears from the affidavit of an officer of the Home Government of the Saurashtra State that soon after the integration took place, an alarming state of lawlessness prevailed in some of the districts within the State. There were gangs of dacoits operating at different places and their number began to increase gradually. As ordinary law was deemed insufficient to cope with the nefarious activi ties of those criminal gangs, the Saurashtra Public Safety Measures Ordinance was promulgated by the Rajpramukh on 2nd April, 1948. The ordinance, as stated already, provided principally for preventive detention and imposition of collective fines '; and it was hoped that armed with these extraordinary powers the State Government would be able to bring the situation under control. These hopes, however, were belied, and the affidavit gives a long list of offences in which murder and nose cutting figure conspicuously in addition to looting and dacoity, which were committed by the dacoits during the years 1948 and 1949. In view of this ugly situation in the Star, the new Ordinance was 463 passed on 11th of November, 1949, and this ordinance pro vides inter alia for the establishment of Special Courts which are to try offenders under a special procedure. Acting under section 11 of the Ordinance, the Government issued a notification on 9/11th February, 1950, which Con stituted a Special Court for areas specified in the sched ule. and here again the affidavit shows that all these areas are included in the districts of Gohilwad, Madhya Saurashtra and Sorath, where the tribe of marauders principally flour ished. The object of passing this new ordinance is identi cally the same for which the earlier ordinance was passed, and the preamble to the latter, taken along with the sur rounding circumstances. discloses a definite legislative policy which has been sought to be effectuated by the dif ferent provisions contained in the enactment. If Special Courts were considered necessary to cope with an abnormal situation. it cannot be said that the vesting of authority in the State Government to select offences for trial by such courts is in any way unreasonable. In the light of the principles stated already, I am unable to hold that section 11 of the Ordinance in so far as it authorises the State Government to direct classes of offences or cases to be tried by the Special Court offends against the provision of the equal protection clause in our Constitution. If the notification that has been issued by the State Government proceeds on any arbitrary or unreasona ble basis, obviously that could be challenged as unconstitu tional. It is necessary, therefore, to examine the terms of the notification and the list of offences it has prescribed. The notification, as said above, constitutes a Special Court for the areas mentioned in the Schedule and appoints Mr. P.P. Anand as a Special Judge to preside over the Spe cial Court. The offences triable by the Special Court are then set out with reference to the specific sections of the Indian Penal Code. Mr. Chibber attacks the classification of offences made in this list primarily on the ground that while it mentions offences of a particular character, it excludes at the same time other offences of a cognate char acter in reference to 60 464 which no difference in treatment is justifiable. It is pointed out that while section 183 of the Indian Penal Code is mentioned in the list, sections 184, 186 and 188 which deal with similar offences are excluded. Similarly the list does not mention section 308, Indian Penal Code, though it mentions section 307. The learned counsel relies in this connection upon the decision of the Supreme Court of America in Skinner vs Oklahoma(1). In that case the question for consideration related to the constitutionality of a certain statute of Oklahoma which provided for sterilization of certain habitual criminals who were convicted two or more times in any State of felony involving moral turpitude. The statute applied to persons guilty of larceny, which was a felony, but not to embezzlement, and it was held that the legislation violated the equal protection clause. It is undoubtedly a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from a person accused of the other, because it is an essential principle underlying the equal protection clause that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. At the same time it is to be noted as Douglas J. observed in the very case that in determining the reach and scope of particular legislation it is not necessary for the legislature to provide abstract symmetry. "It may mark and set apart the classes and types of problems according to the needs and as dictated or sug gested by experience. " A too rigid insistance therefore on a thing like scientific classification is neither practica ble nor desirable. It is true that the notification men tions section 183 of the Indian Penal Code, though it omits section 184; but I am unable to hold that the two are iden tically of the same nature. Section 183 deals with resist ance to the taking of property by the lawful authority of public servant; while section 184 relates to obstructing sale of property offered for sale (1) ; 465 by authority of public servant. Section 186 on the other hand does not relate to the taking of property at all, but is concerned with obstructing a public servant in the dis charge of his public duties. Then again I am not sure that it was incumbent upon the State Government to include section 308, Indian Penal Code, in the list simply because they included section 307. It is true that culpable homicide as well as attempt to murder are specified in the list; but an attempt to commit culpable homicide is certain ly a less heinous offence and the State Government might think it proper, having regard to all the facts known to them, that an offence of attempt to commit culpable homicide does not require a special treatment. Be that as it may, I do not think that a meticulous examination of the various offences specified in the list with regard to their nature and punishment is necessary for purposes of this case. The appellant before us was accused of murder punishable under section 302 of the Indian Penal Code. There is no other offence, I believe, described in the Indian Penal Code, which can be placed on an identical footing as murder. Even culpable homicide not amounting to murder is something less heinous than murder, although it finds a place in the list. In my opinion, the appellant can have no right to complain if he has not been aggrieved in any way by any unjust or arbitrary classification. As he is accused of murder and dacoity and no offences of a similar nature are excluded from the list, I do not think that it is open to him to complain of any violation of equal protection clause in the notification. There are quite a number of offences specified in the notification and they are capable of being grouped under various heads. Simply because cer tain offences which could have been mentioned along with similar others in a particular group have been omitted therefrom, it cannot be said that the whole list is bad. The question of inequality on the ground of such omission can be raised only by the person who is directed to be tried under the special 466 procedure for a certain offence, whereas for commission of a similar offence not mentioned in the list another person has still the advantages of the ordinary procedure open to him. In my opinion, therefore, the first point raised on behalf of the appellant cannot succeed. The other point urged by the learned counsel for the appellant which relates to the question of delegation of legislative authority by the Rajpramukh to the State Govern ment admits, I think, of a short answer. It is conceded by the learned counsel that the facts of this case are identi cal with those of King Emperor vs Benoarilal Sarma (1) which was decided by the Privy Council. In fact, the language of section 5 of the Special Criminal Courts Ordinance (No. II of 1942) which came up for consideration in that case is almost the same as that of section 11 of the Saurashtra Ordinance. It was held by the Privy Council that it was not a ease of delegated legislation at all, but merely an exam ple of the not uncommon legislative arrangement by which the local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity. In other words, it was a case of conditional legislation coming within the rule of Queen vs Burah (2). The pronouncement of the Judicial Committee in Benoarilal 's case (2) has been accepted and acted upon by this court in more than one case and it is too late now to question its correctness. My conclusion, therefore, is that both the preliminary points must be disallowed and the appeal should be heard on its merits. DAS J. The appellant before us was tried by a Special Court constituted under the Saurashtra Public Safety Meas ures (Third Amendment) Ordinance No. LXVI of 1949 for of fences alleged to have been committed by him under sections 302, 307 and 392 of the Indian Penal Code. On December 20, 1950, he was found guilty of the offences charged against him and was convicted and sentenced to death under section 302, (1) 72 I.A. 57. (2) 3 App. 889. 467 Indian Penal Code, and to seven years rigorous imprisonment under each of the charges under sections 307 and 392, Indian Penal Code, the sentences of imprisonment running concur rently He appealed to the High Court of Saurashtra but the High Court, by its judgment pronounced on February 28, 1951, rejected his appeal and confirmed his conviction and the sentences passed by the Special Court. By its order made on March 21, 1951, however, the High Court granted him a cer tificate for appeal to this Court both under article 132 and article 134 (1) (c) of the Constitution. This appeal has accordingly been filed in this Court. A preliminary point has been raised by learned counsel for the appellant, namely, that the Special Court had no jurisdiction to try this case and the whole trial and con viction have been illegal and void ab initio and should be quashed in limine. It is necessary, for the disposal of the preliminary objection, to refer to the provisions of the Ordinance and the circumstances in which the Special Court came to be constituted. In the beginning of 1948 the different States in Kathia war were integrated into what is now the State of Saurash tra. About that time different dacoits indulged in lawless activities in Kathiawar and in particular in the area now known as the districts of Gohilwad and Madhya Saurashtra and on the outskirts of Sorath that was formerly a district in Junagadh State. Their activities gathered such strength and virulence that the security of the State and the maintenance of public peace became seriously endangered. In order to check their nefarious activities the Rajpramukh of the State of Saurashtra on April 2, 1948, promulgated Ordinance No. IX of 1948. The preamble of the Ordinance recited that 'it was "expedient to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra. " that Ordinance gave power to the State Government to make orders, amongst other things, for detaining or restricting the movements or 468 actions of persons and impose collective fines. The Rajpra mukh on April 5, 1948, promulgated another Ordinance No. XII of 1948 which extended to the State of Saurashtra the provi sions of the Code of Criminal Procedure (Act V of 1898) subject to certain adaptations and modifications mentioned in the Schedule thereto. It appears from the affidavit of Ramnikrai Bhagwandas Vesavada, Assistant Secretary in the Home Department, Government of Saurashtra, that the Ordi nance was not sufficient to cope with the activities of the gangs of dacoits and that cases of looting, dacoity, rob bery, nose cutting and murder continued as before and indeed increased in number, frequency and vehemence and it became impossible to deal with the offences at different places in separate Courts of law expeditiously. In view of the seri ous situation prevailing in those districts the State of Saurashtra considered it necessary to constitute Special Courts and to provide for a special procedure of trials so as to expedite the disposal of cases in which offences of certain specified kinds had been committed. The Rajpramukh of Saurashtra accordingly, on November 2, 1949, promulgat ed Ordinance No. LXVI of 1949 called "The Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949", whereby it amended the Saurashtra State Public Safety Meas ures Ordinance (No. IX of 1948). By section 4 of the Ordi nance No. LXVI of 1949 several sections were added to Ordi nance No. IX of 1948. Three of the sections thus added, which are material for our present purposes, were sections 9, 10 and 11 which run as follows : "9. Special Courts. The Government of the United State of the Saurashtra may by notification in the Official Ga zette constitute Special Courts of Criminal Jurisdiction for such area as may be specified in the notification. Special Judges. The Government of the United State of Saurashtra may appoint a Special Judge to preside over a Special Court constituted under section 9 for any area any person who has been 469 a Sessions Judge for a period of not less than 2 years under the Code of Criminal Procedure, 1898, as applied to the United State of Saurashtra. Jurisdiction of Special Judges. A Special Judge shall try such offences or classes of offences or such cases or classes of cases as the Government of the United State of Saurashtra may, by general or special order in writing, direct. " Pursuant to the provisions of the Ordinance as amended the State of Saurashtra issued a notification, the material part of which is as follows : "No. H/35 5 C In exercise of the powers conferred by sections 9, 10 and 11 of the Saurashtra State Public Safety Measures Ordinance, 1948, (Ordinance No. IX of 1948), here inafter referred to as the said Ordinance), Government is pleased to direct (i) that a Special Court of a Criminal Jurisdiction, (hereinafter referred to as the said Court) shall be consti tuted for the areas, mentioned in the schedule hereto an nexed, and that the headquarters of the said Court shall be at Rajkot, (ii) that Mr. P.P. Anand shall be appointed as a Spe cial Judge to preside over the said Court and (iii) that the Special Judge hereby appointed shall try the following offences, viz. . (a) offences under sections 183, 189, 190, 212, 216 224, 302, 304. 307,323 to 335, 341 to 344, 379 to 382 384 to 389 and 392 to 402 of the Indian Penal Code 1860 (XLV of 1860), as adapted and applied to the United State of Saurashtra, and (b) all offences under the said Ordinance, except an offence punishable under sub section (6) of section 2 of the said Ordinance, in so far as it relates to the contravention of an order made under clause (a) of subsection (1) of the said section. " The appellant having been charged with offences included in the Notification he was tried by the Special Court with the result I have mentioned. The preliminary objection raised on his behalf is that section 470 11 of the Ordinance is invalid in that (a) it offends against article 14 of our Constitution, and (b) it autho rises illegal delegation of legislative power to the State Government. In support of the first ground on which the preliminary objection is rounded reliance is placed by learned coun sel for the appellant on the judgment of this Court in Case No. 297 of 1951 (The State of West Bengal vs Anwar Ali Sarkar). That case was concerned with the validity of the trial of the respondent therein by a Special Court consti tuted under the provisions of the West Bengal Special Courts Act, 1950 (West Bengal Act X of 1950). The preamble to that Act recited that it was "expedient to provide for the speedier trial of certain offences". Sections 3, 4 and 5 (1) of the West Bengal Special Courts Act, 1950, reproduced substantially, if not verbatim, the provisions of sections 9, 10 and 11 of the Saurashtra Ordinance of 1948 as subse quently amended. The notification issued by the State of West Bengal under that Act was, however, different from the notification issued by the State of Saurashtra in that the West Bengal notification directed certain specific "cases" to be tried by the Special Court constituted under the West Bengal Special Courts Act. That notification had obviously been issued under that part of section 5 (1) of the West Bengal Special Courts Act which authorised the State Govern ment to direct particular "cases" to be tried by the Special Court. A majority of this court held that at any rate section 5 (1) of the West Bengal Special Courts Act in so far as it authorised the State to direct "cases" to be tried by the Special Court and the notification issued thereunder offended against the provisions of article 14 of the Consti tution and as such were void under article 13. The Saurash tra notification, however, has been issued quite obviously under that part of section 11 which authorises the State Government to direct "offences ' ', "classes of offences" or "classes of cases" to be tried by the Special Court and the question before us on the present appeal is whether that part of section 11 under 471 which the present notification has been issued offends against the equal protection clause of our Constitution. It is contended that the opinion expressed by the majority of this Court in ' the West Bengal case on the corresponding part of section S (1) of the West Bengal Special Courts Act was not necessary for the purposes of that appeal and re quires reconsideration. After referring to our previous decisions in Chiranjit Lal Choudhury vs The Union of India and Others (1) and The State of Bombay vs F.N. Balsara (2), I summarised the meaning, scope and effect of article 14 of our Constitu tion, as I understand it, in my judgment in the West Bengal case which I need not repeat but to which I fully adhere. It is now well established that while article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classifi cation must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii)that that differ entia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. It will be noticed that section 11 of the Saurashtra Ordinance, like section 5 (1) of the West Bengal Special Courts Act, refers to four distinct categories, namely, "offences", "classes of offences", "cases" and "classes of cases" and empowers the State Government to direct any one or more of these categories to be tried by the Special Court constituted under the Act. The expressions "offences", "classes of offences" and "classes of cases" clearly indi cate and obviously imply a process of classification of offences or cases. (1) ; (2) ; at p. 326 ; ; 61 472 Prima facie those words do not contemplate any particular offender or any particular accused in any particular case. The emphasis is on "offences", "classes of offences" or "classes of cases. " The classification of "offences" by itself is not calculated to touch any individual as such, although it may, after the classification is made, affect all individuals who may commit the particular offence. In short, the classification implied in this part of the sub section has no reference to, and is not directed towards, the singling out of any particular person as an object of hostile State action but is concerned only with the grouping of "offences", "classes of offences" and "classes of cases" for the purposes of the particular legislation as recited in its preamble. An argument was raised, as in the West Bengal ease, that even this part of the section gave an uncontrolled and unguided power of classification which might well be exer cised by the State Government capriciously or "with an evil eye and an unequal hand" so as to deliberately bring about invidious discrimination between man and man although both of them were situated in exactly the same or similar circumstances. I do not accept this argument as sound, for, the reasons I adopted in my judgment in the West Bengal case in repelling this argument apply with equal, if not with greater, force to the argument directed against the validity of the Saurashtra Ordinance. It is obvious that this part of section 11 of the Ordinance which, like the corresponding part of section 5 (1) of the West Bengal Special Courts Act, confers a power on the State Government to make a classifi cation of "offences", "classes of offences" or "classes of cases", makes it the duty of the State government to make a proper classification, that is to say, a classification which must fulfil both conditions, namely, that it must be based on some intelligible differentia distinguishing the offences grouped together from other offences and that that differentia must have a reasonable relation to the object of the Act as recited in the preamble. A 473 classification on a basis which does not distinguish one offence from another offence or which has no relation to the object of the Act will be wholly arbitrary and may well be hit by the principles laid down by the Supreme Court of the United States in Jack Skinner vs Oklahoma(1). On the other hand, as I observed in the West Bengal case, it is easy to visualise a situation when certain offences, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a special treatment in order to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they not really different from a case of a stray murder, arson, loot or rape in another district which may not be affected by any communal upheaval ? Does not the existence of the gangs of dacoits and the concomitant crimes committed on a large scale as mentioned in the affidavit filed on behalf of the State call for prompt and speedier trial for the maintenance of public order and the preservation of peace and tranquillity in the State and indeed of the very safety of the community ? Do not those special circumstances add a peculiar quality to the offences or classes of offences specified in the notifi cation so as to distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to the State with power to classify them into a separate group and deal with them promptly ? I have no doubt to ' my mind that the surrounding circumstances and the special features mentioned in the affidavit referred to above furnish a very cogent and reasonable basis of classification, for they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstanceS. This differentia quite clearly has a reason able relation to the object sought to be achieved by the Act, namely, the maintenance of public order, the preserva tion of public safety, the peace and tranquillity of the State. Such a classification (1) 216 U.S. 535; L. Ed. 1655. 474 will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a Special. Court for trial under the special procedure. Persons thus sent up for trial by a Special Court cording to the special procedure cannot point their fingers to the other persons who may be charged before an ordinary Court with similar offences alleged to have been committed by them in a different place and in different circumstances and complain of unequal treatment, for those other persons are of a different category and are not their equals. In my judgment, this part of the section, properly construed and understood, does not confer an uncontrolled and unguided power on the State Government. On the con trary, this power is controlled by the necessity for making a proper classification which is to be guided by the pream ble in the sense that the classification must have a ration al relation to the object of the Act as recited in the preamble. It is, therefore, not an arbitrary power. The Legislature has left it to the State Government to classify offences or classes of offences or classes of cases for the purpose of the Ordinance, for the State Government is in a better position to judge the needs and exigencies of the State and the Court will not lightly interfere with the decision of the State Government. If at any time, however, the State Government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power if it is purposeful, or in excess of its powers even if it is done in good faith, and in either case the resulting discrimination will encounter the challenge of the Constitu tion and the Court will strike down, not the law which is good, but the abuse or misuse or the unconstitutional admin istration of the law creating or resulting in unconstitu tional discrimination. In this case, however, the facts stated in the affidavit filed on behalf of the State make it abundantly 475 clear that the situation in certain parts of the State was sufficient to add a particularly sinister quality to certain specified offences committed within those parts and the State Government legitimately grouped them together in the notification. The criticism that the State Government in cluded certain offences but excluded certain cognate of fences has been dealt with by my learned brother Mukherjea and I have nothing more to add thereto. In my opinion, lot reasons given in my judgment in the West Bengal case and referred to above, section 11 of the Saurashtra Ordinance in so far as it authorises the State Government to direct offences or classes of offences or classes of cases to be tried by the Special Court does not offend against the equal protection clause of our Constitu tion and the notification which has been issued under that part of the section cannot be held to be invalid or ultra vires. On the question of delegation of legislative power the matter appears to be concluded by the decision of the Privy Council in Benoarilal 's case(1) and the section may well be regarded as an instance of conditional legislation. Fur ther, I would be prepared to say, for reasons stated in my judgment in the President 's Reference(2) that there has been no illegal delegation of legislative power. For reasons stated above, I agree that the preliminary point should be rejected and the appeal should be heard on its merits. CHANDRASEKHARA AIYAR J. Mr. Sen tried his best to distinguish this case from our decision on the West Bengal Special Courts Act, 1950, The State of West Bengal vs Anwari Ali Sarkar and Gajan Mali (3). But in my view he has not succeeded in his attempt. Sections 9 and 11 of the Ordinance in question do not lay down any classification in themselves. The preamble to the earlier Ordinance of 1948, which is still intact as the later one is only an amending (1) L.R. 72 I.A. 57. (3) Cases Nos. 297 & 298 of 1951. Since (2) ; reported as ; 476 measure, merely refers to the need to provide for public safety, maintenance of public order, and the preservation of peace and tranquillity in the State of Saurashtra. This by itself indicates no classification, as the object is a general one, which has to be kept in view by every enlight ened government or system of administration. Every law dealing with the commission and the punishment of offences is based on this need. The notification under which the Special Court was established no doubt deals with "offences" as distinguished from "cases" or "groups of cases," but here also, there is no rational classification. Offences present ing the same characteristic features, and cognate in this sense, have been separately dealt with; some of them are to go before the Special Court, while others are left to be tried by the ordinary courts. The circumstance that the deviations from normal procedure prescribed in the Ordinance are not so many or vital, as in the Bengal case, does not in nay humble opinion, affect the result, as the defect of the absence of a reasonable or rational classification is still there. The negation of committal proceedings is a matter of much moment to the accused, as it deprives him of the un doubted advantage of knowing the evidence for the prosecu tion and discrediting it by cross examination, leading possibly to his discharge even at that early stage. The argument for the respondent that there has been no discrimination as against the appellant visa vis other persons charged with the same offences is unacceptable. Cognate offences have been left over for trial by the ordi nary courts. It is no answer to the charge by A of discrim inatory legislation to say that B & C have also been placed in the same category as himself, when he finds that D, E & F also liable for the same or kindred offences have been left untouched and are to be tried by ordinary courts under the normal procedure. Much importance cannot be attached to the affidavit of the Assistant Secretary to the Government. It may be that all the facts stated by him as regards the frequency and locale of the particular 477 offences are true. But no such grounds for the classifica tion are indicated, much less stated, either in the impugned Ordinance or notification. This is certainly not a legal requirement; but a wise prudence suggests the need for such incorporation, as otherwise the ascertainment of the reasons for the classification from extraneous sources may involve the consideration of what may be regarded as after thoughts by way of explanation or justification. In my. view, the West Bengal Special Courts Act deci sion governs this case also, and section 11 is bad. It is unnecessary to deal with the other point raised by the learned counsel for the appellants as regards the dele gation of legislative powers involved in the pro tanto repeal of some of the provisions of the Criminal Procedure Code, viz., sections 5 and 28 and the Schedule, especially as it seems concluded against him by the decision in King Emperor vs Benoari Lal Sarma and Others(1). The convictions of the appellant and the sentences imposed on him are set aside, and there will be a retrial under the ordinary procedure. Boss J. I agree with my brothers Mahajan and Chandra sekhara Aiyar that the Saurashtra State Public Safety Meas ures (Third Amendment) Ordinance, offends article 14. As I explained in my judgment in The State of West Bengal vs Artwar Ali Sarkar(2), I prefer not to base my decision on the classification test. For the reasons given there I am of opinion that the differentiation here travels beyond. bounds which are legitimate. It is true the points of differentiation are not as numerous here as in the other case but the ones which remain are, in my judgment, of a substantial character and cut deep enough to attract the equality clauses in article 14. I would hold the Ordinance invalid. Preliminary objection overruled. (1) (1945) 72 I.A. 57.

The Saurashtra State Public Safety Measures Ordinance, 1948, was passed "to provide for public safety, maintenance of public order and preservation of peace and tranquillity in the State of Saurashtra. " As crimes involving violence such as dacoity and murder were increasing, this Ordinance was amended by the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, which, by secs. 9, 10 and 11, empowered the State Government by notification in the official gazette to constitute Special Courts of criminal Jurisdiction for such area as may be specified in the noti fication, to appoint Special Judges to preside over such Courts and to invest them with jurisdiction to try such offences or classes of offences or such eases or classes of cases as the Government may, by general or special order in writing, direct. The procedure laid down by 436 the Ordinance for trial before such Courts varied from the normal procedure prescribed by the Criminal Procedure Code in two material respects, viz., there was no provision for trial by jury or with the aid of assessors, or for enquiry before commitment to sessions. In exercise of the powers conferred by this Ordinance the Government, by a notifica tion, constituted a Special Court for certain areas and empowered that Court to try offences under sees. 183, 189, 302, 304, 307, 392 and certain other sections of the Indian Penal Code which were specified in the notification. It was contended on behalf of the appellant who had been convicted by the Special Court under secs. 302, 307 and 392 of the Indian Penal Code read with sec. 34, that the Ordi nance of 1949 and the notification above mentioned contra vened article 14 of the Constitution and were therefore ultra vires and void: Held, per PATANJALI SASTRI C.J, FAZL ALI, MUKHERJEA and DAS JJ. (MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and Bose JJ. dissenting) That the impugned Ordinance in so far as it authorised the State Government to direct offences or class es of offences or classes of cases to be tried by the Spe cial Court did not contravene the provisions of article 14 and was not ultra vires or void. The notification issued under the Ordinance was also not void. PATANJALI SASTRI C.J. All legislative differentation is not necessarily discriminatory. Discrimination involves an element of unfavourable bias, and it is in that sense that the expression has to be understood in the context. Equal protection claims under article 14 are examined with the presumption that the State action is reasonable and. justi fied. Though differing procedures might involve disparity in treatment of persons tried under them, such disparity is not. in itself sufficient to outweigh this presumption and establish discrimation unless the degree of disparity goes beyond what the reason for its existence demands, e.g., when it amounts to a denial of a fair and impartial trial. The impugned Ordinance having been passed to combat the increas ing tempo of certain types of regional crime, the two fold classification on the lines of type and territory adopted by the said Ordinance read with the notification issued there under was reasonable, and the degree of disparity of treat ment involved was in no way in excess of what the situation demanded. While on the one hand it cannot be said that any variation of procedure which operates materially to the disadvantage of the accused is discriminatory and violates article 14, the other extreme view that article 14 provides no further constitutional protection to personal liberty than what is afforded by article 21 is also wrong, FAZL ALI J. A distinction must be drawn between "dis crimination without reason" and "discrimination with reason" 437 The whole doctrine of classification is based on this dis tinction and on the well known fact that the circumstances which govern one set of persons or objects may not neces sarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances. The clear recital of a definite objective in the earlier Ordinance and the impugned Ordinance which amended it, furnished a tangi ble and rational basis of classification and the Ordinance and the notification did not violate article 14. [The Legisla ture should however have recourse to legislation like this only in very special circumstances.] MUKHERJEA J. Where the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the execu tive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute. If the administrative body pro ceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can certainly be annulled as offending against the equal protection clause. The preamble of the main Ordinance (IX of 1948) taken along with the surrounding circumstances disclosed a defi nite legislative policy and objective, and the impugned Ordinance cannot therefore be held to be unconstitutional merely because it vested in the Government the authority to constitute Special Courts and to specify the classes of,offences to be tried by such courts with a view to achieve that objective. The notification issued by the Government was also not void as it did not proceed on any unreasonable or arbitrary basis but on the other hand there was a reasonable relation between the classification made b.y the notification and the objective that the legislation had in view. Though it is a sound and reasonable proposition that when the nature of two offences is intrinsically the same and they are punishable in the same manner, a person accused of one should not be treated differently from a person accused of the other, yet in determining the reach and scope of a particular legislation it is not necessary for the legislature to provide abstract symmetry. A too rigid insistence on anything like scientific classification is neither practicable nor desirable. DAS J. The relevant part of sec. 11 properly construed and understood does not confer an uncontrolled and unguided power on the State Government; on the contrary, the power is controlled by the necessity of making a proper classifi cation 438 which is to be guided by the preamble in the sense that the classification must have a rational relation to the object of the Ordinance as recited in the preamble. The classifica tion effected by the impugned Ordinance and the notification thus satisfied the two conditions necessary for a valid classification, viz., that it must not be arbitrary but must be rounded on an intelligible differentia, and that differ entia must have a rational relation to the object sought to be achieved by the Act. The Ordinance and the notification did not therefore contravene article 14 of the Constitution. MAHAJAN J. Section 11 of the Ordinance suggests no reasonable basis for classification either in respect of offences or in respect of cases, nor has it laid down any measure for the grouping either of persons or of cases or of offences, by which measure these groups could be distin guished from those outside the purview of the Ordinance. The words used in the preamble to the main Ordinance and the fact that sec. 9 of the impugned Ordinance provides that the power can be exercised for any particular area cannot limit the plain and unambiguous language of sec. 11, and the said section is therefore unconstitutional. CHANDRASEKHARA AIYAR J. Sections 9 and 11 do not lay down any classification. The preamble to the earlier Ordi nance also indicates no classification as the object stated there is a general one which has to be kept in view by every enlightened Government or system of administration. The classification adopted in the notification also is not a rational one. BOSE J. The differentiation effected by the impugned Ordinance and the notification issued thereunder travels beyond bounds which are legitimate and the Ordinance there fore offends article 14 and is invalid. Held also, per curiam, that the Ordinance was not in valid on the ground that it involved delegation of legisla tive powers. The State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284), In re , etc. ([1951] S.C.R. 7471 and King Emperor vs Benoarilal Sarma [72 I.A. 57] referred to.

vil Appeal No. 41334 134 of 1984. From the Judgment and Order dated 5.3.1982 of the Delhi High Court in L.P.A. No. 125 and 115 of 1981. Ashok Mahajan, G.D. Gupta and R. Venkataramani for the Appellants. Anil Dev Singh, Mrs. Indra Sawhney, Mrs. Sushma Suri and C.V.S. Rao for the Respondents. 793 The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. These two appeals by special leave raise the question of determination of seniority of the appellants in the cadre of Lower Division Clerks. The appeals are preferred against the judgment of the High Court of Delhi dated March 5, 1982 in LPA No. 125 of 1981. The appellants were originally recruited as Civilian School Masters or L.D.Cs., Leading Hand (Technical), etc. either in the Lower Defence Installations comprising Ordnance Factories, Ordnance Depots, Workshops, Regimental Centres, Units, Command Headquarters, etc. under the control of Army Headquarters, New Delhi. Some of the appellants were declared as surplus in those establishments and they came to be posted/transferred to the Armed Forces Headquarters and inter service organisations as LDCs. Their posting/transfer was done in the public interest. They joined the service in the Armed Force Headquarters on various dates between 1960 to 1964. Some of them were later promoted as Upper Division Clerks. While they were thus continuing in service, rules flamed under proviso to Article 309 of the Constitution known as "The Armed Forces Headquarters Clerical Service Rules, 1968 ("The Rules")" were brought into force with effect from March 1, 1968. The Rules inter alia, provide that the seniority in the service shall be determined on the basis of date of confirmation. Prior to the coming into force of the Rules, the seniority in the cadre of service was required to be determined on the basis of length of service. It was so laid down by several official memorandums of the Government or that of the Defence Ministry. After the Rules came into force, the seniority of the appellants was sought to be disturbed on the basis of confirmation as prescribed under the Rules. The appellants, therefore, moved the High Court of Delhi under Article 226 of the Constitu tion contending inter alia, that length of service should be the basis of inter se seniority. They also raised some other questions with which we are not concerned. The learned single Judge accepted the claim of the appellants and made an order dated April 8, 1981. The relevant portion of the order runs as follows: "It is not disputed by the respond ents that the only principle of seniority laid down by various Memoranda was the principle of seniority laid down by various Memoranda was the principle of length of service. No memo randa of Administrative Instructions are brought to my notice by 794 the respondents, where any other principle has been laid down. The petitioners, in all the three petitioners were originally in common LDC cadre and are in the common cadre of U.D.C. now. It cannot be said that some of them (Writ Petition No. 423 of 1975) will all be governed by the principles of length of service and no others because they have not expressly stated that their seniority should be fixed on the principles of length of serv ice. It may be noted that in 1959 the Home Ministry issued general principles of seniori ty to be followed in all Government services except where a service follows a different set of principles. The said Memorandum lays down that seniority of all Government employees, employed subsequent to the issuance of the said Memoranda, will be decided on the basis of the date of confirmation. It further lays down that all confirmed employees would be treated senior to the non confirmed employees. The petitioners would have been ordinarily governed by these principles since they joined the Armed Forces on transfer after 1959. But the Ministry of Defence preferred to continue the principles of length of service (which they had been following prior to 1959), even after the 1959 Memorandum came into operation. The 1963 Memorandum of the Defence Ministry incorporated the said principles and all Memoranda issued thereafter reiterated the principles of length of service. In these circumstances, the contention of respondents cannot be accepted. The seniority of the peti tioners shall be decided by the principle of length of service, that is, their date of joining the Army Headquarters as LDCs. Of course, some of them entitled to additional benefit of past service under the said Memo randum were given that benefit. Since this is the question raised in Civil Writ Petition No. 423/1975, it must succeed." Being aggrieved by the above decision, the Union of India preferred an Appeal before the Division Bench of the High Court. The Division Bench reversed the above view holding that the seniority of the appellants must fall to be determined on the basis of confirmation as prescribed by the Rules and not on the length of service. The view taken by the Division Bench has been challenged in these appeals. We have perused the judgment of the Division Bench and also considered the submissions of the parties. The view taken by the Divi 795 sion Bench appears to be erroneous. The Rules, no doubt provide that all persons substantially appointed to a grade shall rank senior to those holding officiating appointments in the grade. But the Rules have no retrospective effect. It could not impair the existing rights of officials who were appointed long prior to the Rules came into force. The office memorandums to which learned single Judge has re ferred in detail and which we have extracted above clearly laid down that length of service should be the guiding principle of arranging the inter se seniority of officials. The appellants being governed by those memorandums had the fight to have their seniority determined accordingly before the Rules came into force. That being their right, the Rules cannot take it away to their prejudice. The Division Bench was, therefore, clearly in error in directing that the seniority shall follow their respective confirmations. In construing similar office memorandums in a different context, this is what this Court has observed in Union of India vs M. Ravi Varma & Anr., ; at 1002: "As the said Office Memorandum has, except in certain cases with which we are not concerned, applied the rule of seniority contained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is no escape from the con clusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appoint ed prior to December 22. would have to be determined on the basis of their length of service in accordance with Office Memorandum dated June 22, 1949 and not on the basis of the date of their confirmation. " These considerations apply equally to the present case as well. The general rule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to, and shall not be varied to disadvantage retro spectively. The view taken by the Division Bench, which is in substance contrary to this principle is not sound and cannot be supported. In the result, these appeals are allowed with costs. In reversal of the judgment of the Division Bench, we restore that of the learned single Judge. N.P.V. Appeals allowed.

The Armed Forces Headquarters Clerical Service Rules, 1968 were brought into force with effect from March, 1968. The rules provided that seniority in the service shall be determined on the basis of date of confirmation. Prior to this, the seniority in the cadre of service was required to be determined on the basis of length of service, as laid down by several official memoranda of the Government or that of the Defence Ministry. After the rules came into force, the seniority of the appellants who joined the Armed Forces Headquarters as L.D.Cs. between 1960 and 1964, on transfer/posting from the lower defence installations, in public interest, and some of whom were later promoted as U.D.Cs., was sought to be dis turbed, on the basis of confirmation as prescribed under the rules. The appellants, therefore, moved the High Court contending that the length of service should be the basis of inter se seniority. A Single Judge of the High Court held that ordinarily the appellants would have been governed by the general principle of seniority based on the date of confirmation as laid down in the 1959 Memorandum of the Home Ministry, but since the Ministry of Defence had preferred to continue the principle of length of service which it had been following prior to 1959, even after the 1959 Memorandum, and which had been incorporated in 1963 Memorandum and reiterated in all memoranda issued thereafter, the seniority of the appellants should be decided by length of service. i.e., their date of joining the Army Headquarters as L.D.Cs. On appeal by Union of India, the Division Bench held that the 792 seniority of the appellants must fail to be determined on the basis of confirmation as prescribed by the rules, and not on the length of service. Aggrieved by this, the appel lants filed appeals before this court. Allowing the appeals, HELD: The general rule is if seniority is to be regulat ed in a particular manner in a given period, it shall be given effect to and shall not be varied to disadvantage retrospectively. [795F G] The Armed Forces Headquarters Clerical Service Rules, 1968 no doubt provide that all persons substantially ap pointed to a grade shall rank senior to those holding offi ciating appointments in the grade. But the rules have no retrospective effect. It could not impair the existing rights of officials who were appointed long prior to the Rules came into force. [795A B] The various office memoranda clearly laid down that length of service should be the guiding principle of arrang ing inter se seniority of officials. [795B] The appellants being governed by those memoranda had the right to have their seniority determined accordingly before the Rules came into force. That being their right, the rules cannot take it away to their prejudice. The Division Bench, was, therefore, clearly in error in directing that the seniority shall follow their respective confirmations. [795B C] Union of India vs M. Ravi Varma & Anr., ; at 1002. relied on.

Appeal No. 179 of 1985. From the Judgment and Order dated 13.12. 1984 of the Bombay High Court in Appeal No. 273 of 1979. WITH Civil Appeal No. 4427 of 1985. From the Judgment and Order dated 19.4.1985 of the Bombay 356 High Court in Special Civil Appln. (Writ Petition) No. 186 of 1982. A. Setalvad, P.H. Parekh, M. Korde and Manohar for the Appellants in C.A. No. 179 of 1985. Soli J. Sorabjee, A. Vachher, S.K. Mehta, Bomi M. Usgao car, M.K. Dua and Uday U. Lalit for the Appellants in C.A. No. 4427 of 1985. M.S. Rao, A.S. Rao, C.V. Subba Rao and P. Parmeshwaran for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The principal questions raised in the two appeals are the same and we are, therefore, dispos ing of both the appeals by a common judgment. There are, however, some points of difference which we shall mention in the course of the narration of facts. In Civil Appeal No. 179 of 1985, Chowgule & Co. Private Limited are the appellants. They carry on the business of exporting iron ore to various countries from India. It appears that previously iron ore used to be brought to the Mormugao harbour from various mines in the territory of Goa by barges and unloaded in the harbour. Thereafter, the ore would be loaded on board ocean going ore carriers. Alter nately, they would be directly unloaded in stream into the ocean going ore carriers. On account of the shallow draught of the Mormugao harbour which prevented large ocean going ore carrying vessels from entering the harbour or from having iron ore loaded to full capacity on such vessels within the harbour, considerable time was wasted in the loading process resulting in substantial increase of the cost of transporting iron ore from Mormugao. Therefore, in about 1967, the appellant company conceived the idea of acquiring a 'transhipper ' into which barges could unload iron ore and from which large quantities of iron ore could be loaded into large vessels in open anchorages. Such a transhipper would have to be specially fitted with special and adequate equipment to carry out those tasks. The opera tion of loading a vessel in open anchorage by the use of transhippers is described as 'topping up '. On July 26, 1967, the appellant Company applied to the Government of India, Ministry of Transport and Shipping, for necessary permission for "purchasing a second hand vessel of about 15000 DWT for use as a topping up vessel at Mormugao harbour for iron ore exports. " By their letter dated January 16, 1968, the Gov ernment of India granted their permission subject to certain con 357 ditions regarding foreign exchange etc. Thereafter the appellant company acquired a second hand tanker called "The Tropical Grace" and had it converted at the Yokohoma Ship yard in Japan as a transhipper. "A certificate of Condition" in respect of the vessel was given by BUREAU VERITAS. Among the main characteristics of the vessel, it was mentioned in the certificate, "The Vessel originally a T 2 Tanker was converted into an ore loading barge at Yokohoma by Nippon, KK, Asano Dockyard from April to September 1969 under the supervision of our society. " It was further certified as follows: "The vessel will be entered into the Marine Register Book of BUREAU VERITAS with the following class and notation mark: 13 3 Ore Carrier, Small Coasting Trade starting from September 1969, for a period of four years. The vessel will be mainly employed as an ore loading barge in the Harbour of Goa (India), with the possibility to extend her exploita tion in certain periods of year, as a bulk carrier for small coasting trade. As a result of the aforesaid surveys for conversion and reclassification, the undersigned believes that S/S "TROPICAL GRACE" is at present time in a position to undertake the self propelled voyage from YOKOHOMA to GOA. " The vessel arrived in the harbour of Mormugao on or about October 15, 1969. The Deputy Conservator, Mormugao Goa Port Trust, Mormugao harbour was informed on the same day about the arrival of the vessel and it was stated in the letter, "this is an old 72 Tanker converted and equipped to do the work of topping up of the bulk carriers, after they are loaded at the mechanic plant to the permissible draught." On October 20, 1969, the petitioner company applied to the Government of India for the issue of 'General Licence ' under s.406 of the . It was stated that the general licence was sought to ply the vessel 'for top ping purpose in stream at Mormugao harbour '. The name of the ship was also changed to 'Maratha Transhipper '. Licence was granted by the Government of India for use of the vessel for "topping up purposes in stream at Mormugao, Kandla, Bombay and Madras for a period of five years". It appears that this licence was later amended and the purposes for which the licence was granted was treated as "(a) for topping up purposes in stream at any Indian Port; (b) for trading on coast; and (c) for a period of five years from March 5, 1970 to March 4, 1975. " On 358 November 29, 1969, the petitioner company informed the Assistant Collector of Customs, Custom House, Mormugao harbour about the acquisition of the vessel Maratha Tran shipper (earlier Tropical Grace) for "the purpose of up topping large size bulk carrier in stream". It was stated that they would be operating the ship within the port limits and that she would serve as a sea barge. It was also stated that normally she would take cargo coming by barges with the help of her own equipment and storing in her own hatches to the extent of 15000 tonnes and thereafter she would go alongside bulk carriers and transfer the ore from her holds into the bulk carriers. This letter was followed by another letter dated November 29, 1969 in which it was stated that S.S. Maratha Transhipper was registered as a "home trade vessel" and that it was capable of three types of opera tions: (a) load herself in stream in river barges (b) up top another vessel by using the cargo from her own hatches; (c) up top another vessel by using the cargo from barges which go alongside Maratha Transhipper. We may also add here that 'The Maratha Transhipper ' possess es all the certificates prescribed by the and other Maritime Laws to enable her to ply the oceans. On December 31, 1969, the Assistant Collector of Cus toms, Mormugao asked the appellant company to file a Bill of Entry for stores on board the vessel, 'Maratha Transhipper '. This was followed on February 6, 1970 by another letter from the Assistant Collector asking the appellant company to file a Bill of Entry for clearance of the vessel 'Maratha Tran shipper ' for home consumption immediately. The appellant company by their letter dated February 19, 1970 requested the Assistant Collector to enlighten them as to the relevant provisions of the law under which they were required to fill in the Bill of Entry in respect of the vessel which they said the Customs Department was aware was an ocean going vessel. The Assistant Collector replieding, "The function of the vessel s.s. 'Maratha Transhipper ' is in the nature of a sea barge operating within the port limits. Such operations are reserved to the vessels imported for home consumption. " The company was requested to file the Bill of Entry for home consumption immediately. Thereafter there was some corre spondence between the company and the Customs. On April 23, 1970, the Assistant Collector of Customs issued a notice to the appellant company asking them to show cause why the Bill of Entry was not filed in respect of the vessel 359 S.S. 'Maratha Transhipper ' which was imported by the company on October 15, 1969 for the purpose of carrying out topping operations within the port limits. The company sent a reply to the notice. A personal hearing was also granted to the company. Thereafter on May 22, 1970, the Assistant Collector made an order requiring the company to file a Bill of Entry for home consumption in respect of the vessel 'The Maratha Transhipper '. The order of the Assistant Collector was confirmed by the Appellate Collector on July 23, 1970. The Orders of the Assistant Collector and the Appellate Collec tor were questioned in a writ petition filed in the High Court of Bombay. A learned single judge of the High Court allowed the writ petition but on an appeal under the Latter Patent a Division Bench of the High Court holding that a vessel was goods within the meaning of s.46 of the , allowed the appeal and dismissed the writ petition. The company having obtained special leave of this court under article 136 of the Constitution, the appeal is now before us. The facts in Civil Appeal No. 4427 of 1985 are some what different. The vessel in question in this appeal, "Priyamva da" was originally called 'Jagatswamini '. Jagatswamini was an ocean going merchant vessel engaged in foreign and coast al trade in India, the United Kingdom, the continent, Japan, North America, South America and Australia. V.S. Dempo & Co. Private Limited, the appellant in Civil Appeal No. 4427 of 1985 acquired the vessel from its previous owner M/s. Dempo Streamship Limited. The appellant company obtained the permission of the Government to have it converted as a transhipper. The conversion was effected by M/s. A.G. Weser at a West German Shipyard. The ship was fitted with added holds on both sides, cranes, conveyors and ship loading equipments designed for transfer operations. The vessel was surveyed by Germanischer Lloyd and German Maritime. Interna tional tonnage certificate, Suez Canal Tonnage certificate, cargo ship safety certificate, cargo ship safety. equipment certificate, international load lines certificate and clas sification certificate were all issued. The vessel arrived at Mormugao Port on September 26, 1982. The Customs Authori ties demanded that a Bill of Entry should be filed. Thereaf ter the.same story followed as in the other case. The main submissions of Shri Atul Setalvad, the learned counsel for the appellant in Civil Appeal No. 179 of 1985, whose arguments were supplemented by Shri Soli Sorabjee, learned counsel for the appellant in Civil Appeal No. 4427 of 1985, were that the scheme of the show that a vessel was not 'goods ' within the meaning of 360 s.46(1) of the and therefore, it was not neces sary to file a Bill of Entry, that it was also the case of the Government of India that an ocean going vessel was not required to file a Bill of Entry and that the vessel in question was an ocean going vessel notwithstanding that its main purpose was topping up bulk carriers of Iron ore. It was submitted that the Division Bench of the High Court was wrong in refusing to go into the question whether or not the vessel was an ocean going vessel when that was the very basis of the orders of the Customs Authorities as well as the judgment of the learned single judge. On the other hand, it was submitted by Shri S.Madhusudan Rao, learned counsel for the Union of India that the definition of the word 'goods ' in the unambiguously included a vessel, leaving no scope for any argument and that, in any case the vessels in question in both the cases were principally transhippers used for topping up operations in Indian terri torial waters and could not claim to be classified as ocean going vessels. We may now refer to the relevant provisions of the . Section 2(22) of the defines that unless the context otherwise requires, "goods" includes "(a) vessels, air crafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of movable property". "Import" is defined as meaning "bringing into India from a place outside India". "India" is defined as including "the territorial waters of India". "Imported goods" are defined to mean "any goods brought into India from a place outside India but not in cluding goods which have been cleared for home consumption". "Importer" is defined, "in relation to any goods at any time between their importation and the time when they are cleared for home consumption" as "including the owner or any person holding himself out to be the importer". "Conveyance" is defined to include" a vessel, an aircraft and a vehicle". "Bill of Entry" is defined to mean a "Bill of Entry referred to in s.46" '. A "Bill of Export" is defined to mean a "Bill of Export referred to in s.50. " An "Import Manifest or Import Report" is defined to mean "the manifest or report required to be delivered under s.30". "Stores" are defined to mean "goods for use in a vessel or aircraft and includes fuel and spare parts and other articles of equipment whether or not for immediate fitting. " Section 12 provides for the levy of duties of Customs on goods imported or exported from India. Section 15 provides that the rates of duty and tariff valuation shall be the rate and valuation in force, 361 "(a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a ware house under section 68, on the date on which the goods are actually removed from the ware house; (c) in the case of any other goods, on the date of payment of duty." Chapter VI of the is concerned with "provi sions relating to conveyances carrying imported or export goods", Chapter VII deals with "clearance of imported goods and export goods", Chapter VIII deals with "goods in trans it" and Chapter IX deals with "ware housing". Section 29 to 43 occur in Chapter VI and sections 44 to 51 occur in Chap ter VII. Sections 45 to 49 are dealt with under the heading 'clearance of imported goods ' while sections 50 to 51 occur under the heading of 'clearance of export goods '. Section 29 requires the person in charge of a vessel or an aircraft entering India from any place outside India not to cause or permit the vessel or aircraft to call or land (a) for the first time after arrival in India; or (b) at any time while carrying passengers or cargo brought in that vessel or aircraft, at any place other that a customs port or a cus toms airport, as the case may be. Section 30 imposes a duty on a person in charge of the conveyance carrying imported goods to deliver to the proper officer, within twenty four hours after arrival, an import manifest in the case of a vessel or aircraft or an import report, in the case of a vehicle, in the prescribed form. Section 31 prohibits the master of a vessel from permitting the unloading of any imported goods until an order has been given by the proper officer granting 'entry inwards ' to such vessel. An 'entry inwards ' order is not to be given until an import manifest has been delivered or unless the proper officer is satisfied that there was sufficient cause for not delivering it. Section 39 prohibits the master of a vessel from permitting the loading of any export goods other than the baggage and mail bags, until an order has been given by the proper officer granting 'entry outwards ' to such vessel. Section 41 prescribes that an export manifest in the case of a vessel or an aircraft and an export report in the case of a vehicle should be filed by the person in charge of a conveyance before the departure of the conveyance from a customs sta tion. Section 42 prohibits the departure of a conveyance which has brought any imported goods or has loaded any export goods to depart from that customs station without a written 362 order of the proper officer. Section 41 provides that the provisions of sections 30, 40 and 42 shall not apply to a vehicle which carries no goods other than the luggage of its occupants. Chapter VII, as we said, deals with clearance of imported goods and export goods. We are primarily concerned with s.46 and we consider it necessary to extract the whole of the section. It is as follows: "46(1). The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home con sumption or warehousing in the prescribed form: Provided that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub section, the proper officer may, pending the production of such informa tion, permit him, previous to the entry there of (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under s.57 without warehousing the same. (2) Save as otherwise permitted by the proper officers, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) A bill of entry under sub sec tion(1) may be presented at any time after the delivery of the import manifest or import report as the case may be: Provided that the Collector of Cus toms may in any special circumstances permit a bill of entry to be presented before the delivery of such report: Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel by which the goods have been shipped for importation into India is expected to arrive within a week from the date of such presentation. (4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to 363 the truth of the contents of such bill of entry and shall, in support of such declara tion, produce to the proper officer the in voice, if any, relating to the imported goods. (5) If the proper officer is satis fied that the interests of revenue are not prejudicially affected and that there was no fradulent intention, he may permit substitu tion of a bill of entry for home consumption for a bill of entry for warehousing or vice versa. " Section 47 deals with clearance of goods for home consump tion and section 49 with storage of imported goods in ware houses pending clearance. Section 50 requires the exporter of any goods to make an entry thereof by presenting to the proper office, a Shipping bill in the case of goods to be exported in a vessel or aircraft and a bill of export in the case of goods to be exported by land. Section 53 makes provision for permitting goods to be transmitted without payment of duty if they are 'mentioned in the import manifest as for transmit in the same vessel or aircraft. ' Section 54 provides and prescribe the procedure for transhipment of goods without payment of duty. Chapter IX deals with 'Warehousing '. Section 57 provides for ware housing of dutiable goods without payment of duty. Section 68 provides for clearance of warehoused goods for home consumption on payment of duty. Section 69 provides for clearance of warehoused goods for exportation without pay ment of import duty if certain conditions are fulfilled. The only other important provision requiring to be noticed by us is Item No. 76(1) of the First Schedule to the Indian Tariff Act which provides for the levy of 40 per cent ad valorem standard rate of duty on "ships and other vessels for inland and harbour navigation, including steamers, launches, boats and barges imported entire or in sections. " Along with this entry has to be read the exemption granted by G.S.R. No. 930 which is in the following terms: "In exercise of the powers conferred by sec.23 of the , as in force in India and as applied to the State of Pondi cherry, the Central Government hereby exempts ocean going vessles imported into India or the State of Pondichery, other than vessels im ported to be broken up from, the whole of the duty of customs leviable thereon, provided that any such vessel if subsequently bro 364 ken up shall be chargeable with the duty which would be payable on her if she were imported to be broken up." In regard to the levy of customs duty the scheme of the Act appears to be as follows: Goods which are imported into India, that is, goods which are brought into India from a place outside India, are, on entry into India, broadly classified into (i) goods entered for home consumption under sec.46(1)(ii) goods entered for ware housing also under sec.46(1)(ii); (iii) goods in transit, and (iv) goods for transhipment. In the case of goods in transit and goods for transhipment duty is not required to be paid subject to fulfilling the conditions prescribed by secs.53 54, 55 and 56. In the case of these goods there is no need to present a Bill of Entry. Bill of Entry is necessary and has to be presented in the case of goods for home consumption or warehousing: Goods entered for home consumption are required to be cleared on payment of duty. Warehoused goods may be cleared either for home consumption or exportation on pay ment of import duty or export duty as the case may be. Goods entered for home consumption are to be subjected to duty at a rate and tariff valuation as on the date of presentation of a Bill of Entry under sec.46 and goods cleared from a warehouse are to be subjected to duty at a rate and tariff valuation as on the date of actual removal from the ware house. Other goods, presumably goods not disclosed but discovered to be imported or which have otherwise escaped duty, are to be subjected to duty at a rate and tariff valuation as on the date of payment of duty. Sec.46(1) which we have extracted earlier requires the importer of any goods for home consumption or warehousing to present to the proper officer a bill of entry in the pre scribed form. The question, which arises for consideration, therefore, is whether the vessels in the two cases before us are goods brought into India for home consumption? Mixed up with this question is the question whether a transhipper is an ocean going vessel? We will first consider the question whether a vessel is goods so as to attract sec.46(1) of the . By definition a vessel, aircraft or vehicle is included among goods, vide sec.2(22). But, according to Shri Setalvad, notwithstanding the definition, the scheme of Chapters VI and VII of the and the context in which the expression 'goods ' is used in sec.46 of the Act require the expression to be interpreted for the purpose of sec.46(1) as excluding a vessel, aircraft or vehicle. In answer to a direct question by us, Shri Setalvad confessed that if a vessel, aircraft and vehicle are required to be excluded from the meaning of the expression 'goods ' in sec.46(1) of the Act, he was unable to suggest what other purpose was 365 to be served by the inclusive definition of the expression which expressly brought within its shadow 'vessel, aircraft and vehicle '. He frankly stated that he was unable to point out any provision in the Act into which the inclusive defi nition could be read. We cannot attribute redundance to the legislature particularly in the case of a definition in a taxing statute. We must proceed on the basis that such a definition is designed to achieve a result. Under sec. 12 of the what are dutiable are goods imported into or exported from India and if goods are defined to include vessels, aircrafts and vehicles, we must take it that the object of the inclusive definition was to bring within the net of taxation vessels, aircrafts and vehicles which are imported into India. It is ' undisputed and indeed it is indisputable that sec.46(1) is a prelude to the levy of duty or a first step in that direction. It must, therefore, follow as a necessary sequitur that vessels, aircrafts and vehicles are goods for the purpose of sec.46(1). Any other interpretation may lead to most anomalous results. Under sec. 15 of the , the rate of duty and tariff valuation in the case of goods entered for home consumption under sec.46 shall be as on the date when the bill of entry is presented, in the case of goods cleared from a warehouse under sec.68 as on the date on which the goods are actually removed from the warehouse and in the case of any other goods as on the date of payment of duty. Goods which are entered for home consumption under sec.46 and goods which are warehoused are naturally goods which are openly imported into India without concealment. The expression 'other goods ' mentioned in sec. 15(c) is obviously meant to cover other imported goods such as goods imported clandestinely and goods which have otherwise escaped duty. Now, if a motorcar is brought by road into India from a place outside India for the purpose of being used in India, what is to be done with it and what is the point of time with reference to which it is to be subjected to the levy of customs duty? Surely, it is not meant to be subjected to duty as on the date of payment of duty as provided by sec. 15(1)(c), ranking with goods not disclosed but discovered to be imported. It would be unreasonable to subject the car to the levy of duty as on the date of payment of duty instead of on the date prescribed by sec.15(1)(a) of the Act, that is, the date on which a bill of entry is presented under sec.46 as in the case of all other goods entered for home consumption. Shri Setalvad 's submission was based on what he described as the scheme of Chapters VI and VII of the Act. The circumstance that in the several provisions contained in Chapter VI, the reference to 'goods ' is to goods which are carried and not the carriers themselves, is not very materi al since the chapter itself deals 366 with 'conveyances carrying imported or exported goods ' and not to goods which are themselves conveyances, that is, which are either vessels, aircrafts or vehicles. Going to Chapter VII, Shri Setalvad particularly drew our attention to Sec.46(2) which speaks of including in a Bill of Entry the goods mentioned in the bill of lading or other receipts given by the carrier to the consignor and to the unloading of goods referred to in sec.45 and 48 and argued that the reference to 'goods ' here could only be to goods carried and not to the carriers themselves as in Chapter VI. We do not think that we can accept this contention. It may be that in sec.46(2) and elsewhere the word 'goods ' is used in such a way as not to include and as contradistinguished from the conveyances in which the goods are carried, depending upon the context. But that does not mean that despite the defini tion, the word is never to be understood as defined and that it should always be interpreted as never to include vessels, aircrafts and vehicles even when there is nothing in the context justifying their exclusion. We can see no justifica tion for holding that a vessel is not 'goods ' for the pur pose of sec.46(1). The further question is whether the vessels which have been converted into transhippers to be used in Indian terri torial waters for topping up bulk carriers, can be said to be vessels for home consumption merely on that account, even though when they entered Indian territorial waters they came under their own power as ocean going vessels and notwith standing that they are still capable of being used as ocean going vessels and are in fact so used during the off season when it is not practicable to do topping up operations and, for that matter, even during the fair season when they have necessarily to go into the open sea to go alongside the bulk carriers in open anchorages. In both the cases before us there can be no doubt that the vessels are not only capable of being used but are used as cargo ships to carry cargo from one Indian port to another or some times to foreign ports, necessarily going out on the high seas. They are structural and technically competent to go on the high seas and they have been certified to be so competent by appropri ate maritime authorities. Instead of remaining idle and getting rusty, during off season, that is when because of inclement monsoon weather topping up operations cannot be done in Mormugao harbour, the vessels do go out into the open sea sometimes from one Indian port to another and at other times to foreign ports. Of course, even in the course of topping up operations during the fair season, it is necessary for the transhiphers to go into the open sea to reach the bulk carriers. But, in our view, these operations do not make these vessels ocean going vessels when their primary purpose and the purpose for 367 which they were permitted to be purchased and brought to Indian waters, the primary purpose for which they were licensed and the primary purpose for which they are used is to conduct topping up operations in Indian territorial waters and not to serve as ocean going vessels. In the very application that Chowgule and Co. Pvt. Ltd. made to the Government of India for purchasing the vessel, it was stated that they wanted to purchase the vessel for use as a topping up vessel at Mormugao harbour for iron ore. The permission granted was also for that purpose. The certificate of condi tion issued by Bureau Veritas showed that the vessel was to be mainly employed as an ore loading barge in the harbour of Goa with the possibility of extending her 'exploitation in certain periods of the year as bulk carrier for small coast ing trade. ' Similarly in the case of the other vessel also the application of M/s. V.S. Dempos Company Pvt. Ltd. was for the purpose of the vessel Jagat Swamini for use as a transhipper. The Government of India also granted its per mission for the conversion of Jagat Swamini for use as a transhipper at Mormugao port. It is clear from the material placed before us that both the vessels, the Maratha tran shipper and Priyamavadha were originally ocean going ves sels, ,that they were converted as transhippers for the purpose of topping up iron ore at Mormugao harbour and that they traversed the open sea from Yokohoma in Japan and Bremen in Germany respectively to reach Mormugao. At the time they entered the territorial waters at Mormugao it was distinctly understood and intended that the vessels were to be primarily used for topping up operations at Mormugao. If ocean journeys were to be undertaken either they were inci dental to the primary purpose of topping up bulk carriers at Mormugao or they were occasionally undertaken when topping up operations were not possible at Mormugao during the inclement monsoon season. This much is indisputable that though the vessels came on the high seas to reach Mormugao harbour, they were brought to India primarily for the pur pose of topping up operations at Mormugao. In our view, for the purpose of the levy of Customs Duty, in order to determine whether any imported goods are goods for home consumption ', we have to find out the primary intended use of goods when the goods are brought into Indian Territorial waters. If the goods are intended to be primari ly used in India, they are goods for home consumption not withstanding that they may also be used for the same or other purposes outside India. We guard ourselves against saying that the converse may be true. The question whether goods not intended to be primarily used in India but used occasionally for short periods in India also fail within the meaning of the expression 'goods 368 for home consumption ' has not been examined by us. We have only considered the question whether goods brought into India for use primarily in India are goods for home consump tion notwithstanding that they are occasionally or inciden tally used outside India. We are of the view that they are. The vessels, in these two cases, were brought into India to be used primarily as Transhippers at Mormugao, though used incidentally or occasionally to go into the open sea. They are, therefore, 'goods for home consumption ' and not ocean going vessels for the purposes of the . After their conversion they were no longer ocean going vessels, in the full sense of the term that is in the sense that their predominant purpose was use as ships traversing the open seas. It was, therefore, necessary to present Bills of Entry in respect of both the vessels. The learned counsel for the appellants argued that it has been the consistent practice of the Customs Authorities not to insist on Bills of Entry in the case of ocean going vessels. They quoted the statement to that effect from the counter affidavit filed in Civil Appeal No. 4427 of 1985 and cited the example of a number of ocean going vessels which had not been required to present Bills of Entry. It may be that in the case of ocean going vessels, that is, vessels which are primarily used for traversing the open seas, the Customs Authorities have not been insisting on Bills of Entry being presented. It may be that the vessels mentioned by the Appellants as having been permitted to enter into Indian Territorial waters without Bills of Entry are not primarily intended to be used in India and that they do answer the description of ocean going vessels. We do not have precise information about those vessels to conclude that the character of those vessels was the same as the Transhippers with which we are concerned. In the result, both the appeals are dismissed with the costs. A.P.J. Appeals dismissed.

The appellants in Civil Appeal No. 179 of 1985 carry on business of exporting iron ore to various countries. Previ ously iron ore used to be brought to the harbour from var ious mines by barges and unloaded in the harbour. Thereaf ter, the iron ore could be loaded on board ocean going ore carriers. Alternately, they could be directly unloaded in stream into the ocean going ore carriers. Shallow draught of the harbour prevented large ocean going ore carrying vessels from entering the harbour or from having iron ore loaded to full capacity on such vessels within the harbour and consid erable time was wasted in the loading process resulting in substantial increase of the transporting cost. The appellant Company, therefore, conceived the idea of acquiring a "Transhipper" into which barges could unload iron are and from which large quantities thereof could be loaded into large vessels in open anchorages, a process described as "topping up". The appellant Company after obtaining neces sary permission from the Government of India for purchasing a second hand vessel for use as a topping up vessel at Mormngao harbour for iron ore exports, acquired a second hand tanker, had it converted as a transhipper and obtained ' 'A certificate of Condition. " On the arrival of the vessel in the harbour the Deputy Conservator of the harbour was informed that "this is an old 72 Tanker converted and equipped to do the work of topping up of the bulk carriers after they are loaded at the mechanic plant to the permissi ble draught." The appellant Company then applied to the Government of India for the issue of "General Licence" under s.406 of the stating that the general licence was sought to ply the vessel 'for topping purposes in stream at Mormugao harbour '. Licence was granted by the Government of India "(a) for topping up purposes in stream at any Indian port; (b) 352 for trading on coast; and (c) for a period of 5 years from March 5, 1970 to March 4, 1975". The appellant Company also informed the Assistant Collector of Customs about the acqui sition of the vessel 'Maratha Transhipper ' for "the purpose of uptopping large size bulk carrier in stream" stating that they would be operating the ship within the port limits, that she would serve as a sea barge, that normally she would take cargo coming by barges with the help of her own equip ment and storing in her own hatches and thereafter she would go along side bulk carriers and transfer the ore from her holds into the bulk carriers. Subsequently, it was also informed that transhipper was registered as a "home trade vessel" and it was capable of three types of operations namely, (a) load herseft in stream in river barges; (b) up top another vessel by using the cargo from her own hatches; and (c) up top another vessel by using the cargo from barges which go along side Maratha Transhipper. Thus, "the Maratha Transhipper" possessed all the certificates prescribed by the and other Maritime Laws to enable her to ply the oceans. The Assistant Collector of Customs asked the appellant Company to file a Bill of Entry for stores on board the vessel and for dearance of the vessel for home consumption. On query being made by the appellant Company as to under what provisions of the law they were required to file the Bill of Entry, the Assistant Collector replied stating: "the function of the vessel 'S.S. Maratha Transhipper ' is in the nature of sea barge operating within the .port limits. Such operations are reserved to the yessics imported for home consumption." The Assistant Collector of Customs issued a mice to the appellant Company to show cause why the Bill of Entry was not filed. After the reply to the notice was sent and a personal hearing was granted to the Company, the Assistant Collector made an order requiring the company to file a Bill of Entry for home consumption. This order was confirmed by the Appellate Collector. The orders of the Assistant Collector and the Appellate Collector were ques tioned in a writ petition. A Single Judge allowed the peti tion but on appeal a Division Bench set aside the order of the Single Judge and dismissed the petition holding that a vessel was 'goods ' within the meaning of s.46 of the Customs Act. The vessel in C.A. No. 4427 of 1985 was an ocean going merchant vessel engaged in foreign and coastal trade in India and various foreign countries. The appellant acquired the vessel from the previous owner and obtained the permis sion of the Government to have it converted as a Tranship per. After the vessel arrived at Mormugao Port, the Customs Authorities demanded that a Bill of Entry should be filed. Thereafter the 353 same story followed as in the other case. In the appeal to this Court on behalf of the appellant it was contended: (1) that the scheme of the Customs Act show that a vessel was not 'goods ' within the meaning of s.46(1) of the Act and therefore, it was not necessary to file a Bill of Entry; (2) that it was also the case of the Government of India that an ocean going vessel was not required to file a Bill of Entry and that the vessels in question were ocean going vessels notwithstanding that their main purpose was topping up bulk carriers; (3) that the Division Bench was wrong in refusing to go into the question whether or not the vessels were ocean going vessels when that was the very basis of the orders of the Customs Author ities as well as the judgment of the Single Judge, and (4) that notwithstanding the definition, the scheme of Chapters VI and VII of the Customs Act and the context in which the expression 'goods ' is used in s.46 of the Act require the expression to be interpreted for the purpose of s.46(1) as excluding the vessel, aircrafts or vehicles. On behalf of the respondent Union, it was contended that the definition of the word 'goods ' in the Customs Act unam biguously included a vessel, and that in any case the ves sels in question in both the cases were Transhippers used for topping up operations in Indian territorial waters and could not claim to be classified as ocean going vessels. Dismissing the appeals, HELD: 1. Section 46(1) of the require the importer of goods for home consumption or warehousing to present to the appropriate officer a Bill of Entry in the prescribed manner. The question is whether the vessels in the instant cases are goods brought into India for home consumption and whether a transhipper is an ocean going vessel? By definition a vessel, aircraft or vehicle is included among goods vide s.2(22). [364E G] 2. If a vessel, aircraft and vehicle are required to be excluded from the meaning of the expression 'goods ' in s.46(1), then what other purpose was to be served by the inclusive definition of the expression which expressly brought within its shadow 'vessel, aircraft and vehicle '. There is no provision in the Act into which the inclusive definition could be read. The Court cannot attribute redun dance to the legislature particularly in the case of a definition in a taxing statute. The Court must proceed on the basis that such a definition is designed to achieve results. [364H; 365A B] 354 3. Under s.12 of the what are dutiable are goods imported into or exported from India and if goods are defined to include vessels, aircrafts and vehicles, it must be taken that the object of the inclusive definition was to bring within the net of taxation vessels, aircrafts and vehicles which are imported into India. Section 46(1) is a prelude to the levy of duty or a rust step in that direc tion. It must, therefore, follow us a necessary sequitur that vessels, aircrafts and vehicles are 'goods ' for the purpose of s.46(1). Any other interpretation may lead to most anomalous results. [365B C] 4. Under s.15 of the Act the rate of duty and tariff valuation in the case of goods entered for home consumption under s.46 shall be as on the date when the Bill of Entry is presented, in the case of goods cleared from a warehouse under s.68 as on the date on which the goods are actually removed from the warehouse and in the case of any other goods as on the date of payment of duty. [365D E] 5. Goods which are entered for home consumption under s.46 and goods which are warehoused are naturally goods which are openly imported into India without concealment. The expression 'other goods ' mentioned in s.15(c) is obvi ously meant to cover other imported goods such us goods imported clandestinely and goods which have otherwise es caped duty. [365E] 6. It may be that in s.46(2) and elsewhere the word 'goods ' is used in such a way as not to include and as contradistinguished from the conveyances in which the goods are carried, depending upon the context. But that does not mean that despite the definition, the word is never to be understood as defined and that it should always be inter preted as never to include vessels, aircrafts and vehicles even when there is nothing in the context justifying from exclusion. Therefore, there is no justification for holding that a vessel is not 'goods ' for the purposes of s.46(1). [366B D] 7. In both the instant cases, undoubtedly the vessels are not only capable of being used but are used as cargo ships to carry cargo from one Indian port to another or sometimes to foreign ports, necessarily going out on the high seas. They are structurally and technically competent to go on the high seas and they have been certified to be so competent by appropriate maritime authorities. When because of inclement monsoon weather topping up operations cannot be done the vessels do go out into the open sea sometimes from one Indian port to another and at other times to foreign ports. Even in the come of topping up operations during the fair season, the transhippers go into the open sea to reach the bulk 355 carriers. But these operations do not make these vessels ocean going vessels when their primary purpose is to conduct topping up operations in Indian territorial waters. [366F H; 367A B] 8. It is clear from the material placed before the Court that both the vessels, were originally ocean going vessels, that they were converted as transhippers for the purpose of topping up iron ore at Mormugao harbour and that they tra versed the open sea to reach Mormugao. At the time they entered the territorial waters at Mormugao it was distinctly understood and intended that the vessels were to be primari ly used for topping up operations at Mormugao. If ocean journeys were to be undertaken either they were incidental to the primary purpose of topping up bulk carriers at Mormu gao or they were occasionally undertaken when topping up operations were not possible during the inclement monsoon season. [367D F] 9. For the purpose of levy of Customs Duty, in order to determine whether any imported goods are 'goods for home consumption ' it has to he found out what the primary intend ed use of the goods was when the goods are brought to Indian territorial waters. If the goods are intended to be primari ly used in India they are "goods for home consumption" notwithstanding that they may also be used for the same or other purposes outside India. The vessels, in these two cases were brought to India to be used primarily as tran shippers at Mormugao, though used incidentally or occasion ally to go into the open sea. They are, therefore, "goods for home consumption" and not ocean going vessels for the purpose of . After their conversion they were no longer ocean going vessels, in the full sense of the term that is in the sense that their predominant purpose was use as ships traversing open seas. It was, therefore, necessary to present Bills of Entry in respect of both the vessels. [367G H; 368A C]

ivil Appeal No 9993 of 1983 etc From the Judgment and Order dated 16.12.1982 of the Gujarat High Court in S A No. 168 of 1982. B.K. Mehta, Kajinder Sachhar, T.U. Meita, S.K. Dholakia. Vimal Dave Krishan Kumar. Mrs C.M. Chopra, P.H. Parekh, Ms. Sunita Sharma, Mrs. Rani Chhahra. R C Bhatia and P.C. Kapur for the appearing parties The Judgment of that Court was delivered by SABYASACHI MUMKHARJI. These appeals and the special leave petition are directed against the decision of the High Court of Gujarat, upholding the right of the mortgagors to redeem the properties before the period stipulated In the deeds. as well as the right of the mortgagors to recover possession of the properties from the tenants and/or the mortgagees without resort to the relevant Rent Restriction Act. All these matters were separately canvassed before us as these involved varying facts, yet the fundamental common question is, whether long term mortgages in the present infaltionary market in fast moving conditions are clogs on equity of redemption and as such the mortgages are redeemable at the mortgagors ' instance before the stipulated period and whether the tenants who have been inducted by the mortgagees can be evicted on the termination of the mortgage or do these tenants enjoy protection under the relevant Rent Restriction Acts. One basic fact that was emphasised in all these cases was that all these involve urban immovable properties. In those cirumstances, whether the mortgages operate as clogs on equity of redemption is a mixed question of law and facts. It is necessary to have a conspectus of the facts involved in each of the cases herein. We may start with the facts relating to Special Leave Petition (Civil ) No. 8219 of 1982 because that is a typical case. PG NO 834 In this matter by our order dated 9th January, 1988 we had directed that this special leave petition should be heard first in these series of matters. We do so accordingly. We grant leave and dispose of the appeal by the judgment herein along with other appeals. This is an appeal from the judgment and order of the Gujarat High Court, dated 26th April, 1~82 dismissing the second appeal. The High Court observed that the learned Judge had followed the judgment of the said High Court in Khalubai Nathu Sumra vs Rajgo Mulji Nanji and others, AIR 1979 Gujarat 171 where the learned Single Judge in the background of a mortgage, where the mortgagor was financially hard pressed and the mortgage was for 99 years and the term gave the mortgagee the right to demolish existing structure and construct new one and the expenses of such to be reimbursed by mortgagor at the time of redemption, it was held that the terms were unreasonable, unconscionable and not binding. In order, however, to appreciate the contentions urged therein, it will be necessary to refer to the decision of the first Appellate Court, in the instant case before us. By the judgment, the Assistant Judge, Kutch at Bhuj in Gujarat disposed of two appeals. These appeals arose from the judgment and decree passed by the Civil Judge, Bhuj, in Regular Civil Suit No. 35/72 by which the decree for redemption of mortgage was passed and the tenants inducted by the mortgagees were also directed to deliver up possession to the mortgagors. The plaintiffs had filed a suit alleging that the deceased Karsandas Haridas Purohit was their father and he died in the year 1956, he had mortgaged the suit property to Kanasara Soni Shivji Jotha and Lalji Jetha for 30,000 Koris by a registered mortgage deed dated 20th April, 1943. The moltgage deed was executed in favour of Soni Govindji Nalayanji who was the power of attorney holder and manager of the defendants Nos. 1 and 2. The defendant No. 3 is the heir of said Govindji Narayanji and he was also managing the properties of the defendants Nos I and 2. The mortgage property consisted of two delis in which there were residential houses, shops etc. The mortgagees had inducted tenants in the suit property and they were defendants Nos. 4 to 9 in the original suit When the mortgage transaction took place, thc economic condition of the father of the plaintiffs was weak. he was heavily indebted to other persons. It was alleged and it was so held by the learned Judge and upheld by the Appellate Judge that the mortgagees took advantage of ' that situation and took mortgage deed from him on harsh and oppressive conditions. They got incorporated long term of 99 years for redemption of mortgage. It is further stated that though possession was to be handed over to the mortgagees, they took condition for interest on the part of principal amount in the mortgage PG NO 835 deed. Moreover, the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property. They were also permitted to rebuild the entire property. Thus these terms and conditions, according to the Appellate Judge, were incorporated in the mortgage deed to ensure that the mortgagors were prevented for ever from redeeming the mortgage. The terms and conditions, according to the Assistant Judge, Bhuj, being the first Appellate Court were unreasonable, oppressive and harsh and amounted to clog on equity of redemption and, as such, bad and the plaintiffs were entitled to redeem the mortgage even before the expiry of the term of mortgage. A registered notice to the defendants Nos. I and 2 was given to redeem the mortgage but they failed to do so, hence, the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees. The defendant No. 1 resisted the suit. It was his case that the term of mortgage was for 99 years, so the suit filed before the expiry of that period was premature. The defendant No. 3 resisted the suit by written statement. The defendants Nos. 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage and even if they were so entitled, they could not get actual physical possession from the tenants who were protected by the provisions of the relevant Bombay Rent Act. It was their case that the plaintiffs were not entitled to get actual possession of the premises in which they were inducted by the mortgagees. The defendants Nos. 2/1 to 2/7 who were the heirs of mortgagee Shivji Jetha were residing in London and New Delhi, so the personal service of summons could not be effected upon them. The summons was published in the local newspapers but none of them appeared before the Court so the Court proceeded ex parte against them. The trial was conducted and a preliminary decree for redemption of mortgage was passed on 2nd April, 1974 by the Trial Court. Thereafter, the decree holder applied for final decree so the notices were issued to all the defendants. The heirs of Shivji Jetha appeared in response to that notice and filed applications before the Trial Court to set aside the ex parte decree on the ground that summons of the suit had not been duly served upon them. That prayer was rejected by the Trial Court. Thereafter, they filed Civil Misc. Appeals in the District Court. The appeals were allowed by the District Court and the ex parte decree for redemption of mortgage was set aside. The Trial Court was directed to proceed with the suit after permitting the concerned defendants to take part in the proceedings right after receiving their written statements. Accordingly defendant No. 2/1 appeared in the PG NO 836 suit and filed his written statement while other defendants remained absent. It was the case of the defendant No. 2/1 that the sisters of the plaintiffs had not been joined as parties in the suit, so the suit was bad for want of necessary parties. Moreover, as per the terms and conditions of the mortgage deed dated 20th April, 1943, there was usufructuary mortgage for 20,000 koris and the remaining l0,000 koris were advanced to the mortgagor at monthly interest at the rate of 1/2 per cent. There was a condition in the mortgage deed that the mortgagor should pay principal amount as well as the interest at the time of redemption. When the suit was filed in the year 1972. the mortgagees were entitled to recover interest on l0,000 koris for a period of 291 ears . That interest would be 17,400 koris so the total mortgage amount will be Rs.47400 which would be equivalent to Rs. 15,800) and and the Civil Judge had no jurisdiction to try such suit so the plaint Should have been returned for presentation in the proper court. It was further alleged that the court fees paid by the plaintiffs was also not sufficient. Moreover, it was not true that the father of the plaintiffs was of weak economic condition. The grand father of the plaintiffs was an Advocate and the father of the plaintiffs was the clerk of an Advocate. The plaintiff No. l was also working as an Advocate at the time of the mortgage. so they knew the legal position. It was further alleged that at the relevant time the prevalent custom in Kutch State was to take mortgages of long term for 99 years and when it was permissible to take mortgage deeds with such a long term It was also necessary to give permission for rebuilding the whole property, for better enjoyment of it. So long term mortgage and the conditions for reconstruction of the property could not amount to clogs on equity of redemption of mortgage it was the case of the mortgagees and/or tenants. The mortgagees did not take any, it was pleaded. undue advantage and they were not present physically when the transaction took place through their power of attorney holders If the conditions in the mortgage deed did not amount to clogs on equity of redemption, the suit would be clearly premature. It may be mentioned that the plaintiff No. 1 had subsequently become a Civil Judge and was ultimately the Chairman of the Tribunal so if the said terms and conditions of the mortgage were onerous and oppressive, he would not have sat idle for 29 years. But he remained silent because he was aware of the custom, It was pleaded. It was alleged that the prices of immovable properties had increased tremendously, therefore, th. suit had been filed with mala fide intention. It was averred that in case the Court came to the conclusion that there was clog on equity of redemption and the plaintiffs were entitled to the PG NO 837 redemption, then the interest on 10,000 koris should be awarded to the mortgagees. In the premises, it was averred that the suit should be dismissed as there was no clog on equity of redemption and the court had no jurisdiction to try the suit The Trial Court then recorded additional evidence in the suit and ultimately decreed the suit on 28th September, 1978. The Trial Court came to the conclusion that there was mortgage transaction between the father of the plaintiffs and Soni Shivji Jetha and Lalji Mulji on 20th April, 1943. The Trial Court further came to the conclusion that the terms and conditions in the mortgage deed were harsh and oppressive, which amounted to clog on equity of redemption, so the plaintiffs were entitled to file the suit even before the expiry of the term of the mortgage. The Trial Court also came to the conclusion that the sisters of the plaintiffs were not necessary parties to the suit and even if they were necessary parties, a co mortgagor was entitled to file the suit for redemption, so the suit was not bad for want of non joinder of necessary parties. The Trial Court further came to the conclusion that it had jurisdiction to try the suit and held that the mortgagees were not entitled to claim interest on 10,000 koris. It was further directed that the plaintiffs were entitled to recover possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees. Accordingly, a preliminary decree was passed in the suit. Aggrieved thereby the mortgagees filed Regular Civil Appeal No. 149/78 and the tenants filed Regular Civil Appeal No. 150/78. These were disposed of by the judgment of the first Appellate Court The learned Judge of the first Appellate Court framed the following issues: "(1) Whether the terms and conditions in the mortgage deed dated 20.4.1943 amount to clog on equity of redemption? (2) Whether the decree passed is bad for want of jurisdiction with trial court? (3) Whether the mortgagees are entitled to get interest on 10,000 koris? (4) Whether the tenants are protected from the effect of redemption decree by virtue of the provisions of Bombay Rent Act? PG NO 838 (5) Whether the decree passed by the trial court is legal and proper? (6) What order?" It is not necessary any longer in view of the findings made and the subsequent course of events to detain ourselves on all the issues. For the purpose of the present appeal is well as the connected appeals we are concerned with two issues, namely, Issue Nos. 1 and 4 stated above, in other words, whether the terms and conditions of the mortgage deed dated 20th April, 1943 amounted to clog on equity of redemption and secondly, whether the tenants are protected from the effect of redemption decree by virtue of the provisions of the Bombay Rent Act. The learned Assistant Judge in the first appeal had noted that it was not in dispute that the document. 103 dated 20th April, 1943, the certified copy of which was also produced at Ext. 51 was executed by the father of the plaintiffs in favour of Kansara Soni Shivji Jetha. According to this document, an usufructuary mortgage was created on the suit property for 20,000 koris and the possession was to be delivered to the mortgagees. Over and above that a further amount of 10,000 koris was also paid to the mortgagor for which he had to pay interest at the rate of 1/2 per cent per month. The mortgage period was fixed for 99 years and after the expiry of that period, the mortgagor had to pay 30,000 koris as principal amount along with interest due on 10,000 koris. This was a registered document and it was acted upon by the parties. The learned Trial Judge held that the long term of 99 years for redemption coupled with other circumstances, indicated that there was clog on equity of redemption It was argued that the long term for redemption was not necessarily a clog on equity of redemption. Certain deeisions were referred to. The Trial Court noted that there was no quarrel with the proposition of law that long term itself could not amount to clog on equity of redemption, when the bargain otherwise was reasonable one and the mortgagee had not taken any undue or unfair advantage. But, if in a mortgage with long term of redemption, there were other circumstances to suggest that the bargain was unreasonable one and the mortgagee had taken unfair advantage, then certainly long term also will be clog on equity of redemption. It is a question to be judged in the light of the surrounding circumstances. It may be noted here that there was a condition in the mortgage deed permitting construction of structure after demolishing the existing structure, costs of which were to be paid by the mortgagor. After examining the PG NO 839 facts and the relevant decisions, the first Appellate Court came to the conclusion that the terms were oppressive and harsh and there was clog on equity of redemption and the mortgagor should be freed from that bondage. Shri Rajinder Sachar, Shri B.K. Mehta as well as Shri Dholakia urged on behalf of their respective clients that in former Kutch district, there was a custom to take mortgages for long term of 99 years and when the period was long. naturally the mortgagee would be required to give full authority to repair and reconstruct the mortgaged property with a view to keep pace with new demands of changing pattern, so the condition permitting the mortgagee to reconstruct the whole premises was natural consequence of long term and that should not be treated as clog on equity of redemption. The learned Assistant Judge had rejected the similar contention made before him on behalf of the mortgagees and tenants in view of the decisions of the Gujarat High Court which were also arising out of the decisions in the suits filed in Kutch district and in those cases it was held that there was clog on equity of redemption. We will deal with some Gujarat decisions separately, presently. The learned Assistant Judge referred to another circumstance i.e., to the condition of mortgage which indicated the oppressive nature of the term. By mortgage deed being Ext. 103 usufructuary mortgage was created for 20,000 koris only and additional mortgage of 10,000 koris was also created for which the mortgagor had to pay interest at the rate of 1/2 per month. Furthermore, the mortgagor was not allowed to discharge interest liability periodically, but he had to pay to whole amount of interest at the end of 99 years at the time of redemption of the mortgage. Naturally, there would be hugh accumulation of interest which for all practical probabilities in most of the cases will be an impossibility to discharge. It was held that the purpose was to ensure that the right of redemption could never be exercised. On the other hand, it was contended before the learned Assistant Judge that the transaction was bona fide because reasonable consideration was paid as mortgage money. They was no direct contact between the mortgagor and the mortgagee. There could not be any collusion. The mortgagees were abroad. The learned Assistant Judge examined the evidences of one Madhavji Shivji Soni in order to show comparable instances for reasonableness of the consideration. The learned Assistant Judge after discussing the evidence proceeded on the assumption that the consideration paid as mortgage money was reasonable and proper and, according to him, it did not make any difference if the other conditions in the mortgage deed were found to be oppressive and amounting to clog on equity of redemption. PG NO 840 Attention of the learned Assistant Judge was drawn to the fact that this was a bona fide transaction at the time when made, but subsequently, the prices of immovable properties increased so the plaintiffs had come forward to file suits after a lapse of long time. It was highlighted that the plaintiff No. I was serving as a Civil Judge and if he came to know that the transaction was oppressive, he would not have sat idle for such for a long period. Reference was made to the decision of this Court in Seth Ganga Dhar vs Shankar Lal & Ors. , We will examine that decision in detail. The learned Assistant Judge came to the conclusion on point No. 1 that there was clog on equity of redemption and accordingly answered the Issue No. 1 in the affirmative. With the other issues we are not concerned in this appeal except Issue No. 4. Regarding Issue No. 4, as mentioned hereinbefore, which is on the question whether the tenants are protected from the effect of redemption decree by virtue of the provisions of the Bombay Rent Act, it may be mentioned that the tenants had filed regular civil appeal and it was urged before the learned Assistant Judge that even if the mortgage was redeemed, the tenants inducted by the mortgagees would be entitled to continue in possession of the properties in question as they were protected by the provisions of the said Rent Act. There was no dispute in this case and in the facts of the other three appeals that thc tenants were inducted by the mortgagees after the mortgage was created. It is also true that in all these mortgage deeds, there was provision that the mortgagees were competent to lease out the suit property and if in exercise of that power, they inducted the tenants in the suit properties, their tenancies would not come to an end on the redemption of mortgage, it was argued. The Full Bench of the Gujarat High Court in Lalji Purshottam vs Thacker Madavji Meghaji, 17 Gujarat Law Reporter 497 held that the mortgagee in possession might lease the property, but authorisation to the mortgagee to let out the property to any other tenant would not amount to an intention to create tenancy beyond the term of mortgage. Following the said decision, however, it was held that the tenant had no right to be in possession and was not entitled to the protection of the Bombay Rent Act after the redemption of the mortgage. The appeal was accordingly disposed of. As mentioned hereinbefore, there was a second appeal to the High Court and thc High Court expressed the view in brief order and dismissed the second appeal on 26th April, 1982 It appears, however, that in second appeal two questions were agitated, (1) the question of jurisdiction and Damdupat and (2) the tenants ' right to be in possession. So far as the question of jurisdiction and Damdupat, the High Court observed that the Assistant Judge was right. This PG NO 841 point is not before us in this appeal under Article 136 of the Constitution. So far as the question of tenants ' right to be in possession after the redemption of mortgage, the High Court followed the decision in Khatubai Nathu Sumra vs Rajgo Mulji Nanji and others, (supra). Before we deal with the question of law and the respective submissions, we may briefly so far as relevant for the present purpose refer to the facts of the other three appeals. Civil Appeal No. 9993 of 1983 is an appeal by the tenant arising out of the Regular Civil Appeal No. 150 of 1978 before the learned Assistant Judge, Kutch, at Bhuj, referred to hereinbefore. The facts have been set out hereinbefore and it is not necessary to reiterate these. We will deal with the contentions in respect of the same at the appropriate stage. Civil Appeal No. 397 of 1980 is also an appeal by the tenant. It arises from the judgment and order of the High Court of Gujarat, dated 7th November, 1978 in Civil Revision Application No. 1447 of 1978. One Naranji Nanshi Thacker (hereinafter referred to as the decree holder) instituted a Regular Civil Suit No. 10 of 1968 in the Court of the learned Civil Judge (J.D.), Bhuj. The suit was originally dismissed on 29th November, 1967. It was a suit for redemption of the mortgaged property located in the town of Bhuj. Thereupon, the respondent No. I preferred an appeal to the District Judge where the suit was decreed. The defendants filed a second appeal which was dismissed and the decree holder made an application for final decree and the Court gave the final decree on 30th November, 1974. While giving the final decree for redemption of the mortgage a direction was given in the decree to the judgment debtors to hand over the possession of the mortgaged property within three months on the decree holder making payment of dues in respect of the mortgage in the Court. In pursuance of the final decree the decree holder took out the execution proceedings and deposited the dues in the Court. At the same time the decree holder claimed possession of the mortgaged property from one Shambhulal Vallabhji Thacker, the appellant herein, stating that he was a tenant in the possession of the property. The notice was issued to Shambhulal Vallabhji, who appeared before the Court and submitted his obJections stating that he was a tenant protected by law and he could not be evicted in the execution of the decree obtained by the decree holder. He also stated that he was entitled to get the protection under the Bombay Rent Control Act. PG NO 842 The learned District Judge held that there was no conduct on the part of the decree holder which would estop him from claiming physical possession from the tenant of the mortgagee in possession. It was contended that when the mortgagee leased out the mortgaged property under the ordinary prudent management of the mortgaged property the mortgagor on redemption of the mortgage was not entitled to recover physical possession of the property from the tenant. The learned Judge negatived this contention. The High Court rejected the appeal summarily. Hence, this appeal. Civil Appeal No. 1286 of 1981 is also an appeal by the tenant. The appellant is the tenant of the mortgagee. The plaintiffs Nos. 1 to 6 are the heirs and legal representatives of deceased Mehta Kanji Bhagvanji. It may be mentioned that the tenant was inducted by the mortgagee in 1955. The property was mortgaged in 1948 for a period of five years. It appears, therefore, that the tenant was inducted after the period of redemption had expired. The mortgagor had a right to redeem after the expiration of the mortgage. It was contended that though the mortgagee had inducted tenants in the suit property with a mala fide intention on the part of the mortgagee, it was still an act of prudent management. The first Appellate Court on the question before us, namely, whether the tenant was protected by the Bombay Rent Act, came to the conclusion after discussing all the relevant evidence and relying on the decision of the Lalji Purshottam vs Thacker Madhavji Meghaji (supra) that the tenants were not so protected under the provisions of the Bombay Rent Act in the facts of the case The appellant preferred this appeal and this is in issue in this case . Shri Rajinder Sachar appearing for the appellant mortgagee in Special Leave Petition (Civil) No. 8219 of 19X 2 drew our attention to the evidence of Vrajlal which appears at page 163 of the Special Leave Petition (Civil) No. 8219/82 wherein he stated about the execution of the documents. He stated that when document, Exhibit No. 51 was made, his father 's economic (financial) position was bad. On his father, there was a debt of 12,000 koris of Kansara Motilal Madhavji. There was also sundry debt of 7,000 8,000 koris. His father was an Advocate in Kutch since old times. He was in service. The younger brother was studying. Therefore, father mortgagor was in need of money, it was clear. Motilal Madhavji was pressing for his debt. They were staying in suit property and had no property except the suit property. He tried to explain the circumstances in which the mortgage deed was executed. PG NO 843 Shri Sachar drew our attention to the observations of the Judicial Committee in the case of Aziz Khan vs Duni Chand and others, A.I.R. 1918 P.C. 48, where it was held that even where the transaction in question was undoubtedly improvident in the absence of any evidence to show that the money lender had unduly taken advantage of his position, it was difficult for a Court of justice to give relief on grounds of simple hardship. Shri Sachar tried to urge in the facts and circumstances of the instant case that there is no evidence to lead to the conclusion that there was any undue influence. Great deal of reliance, however, by the appellants as well as the respondents was placed on the observations of this Court in Seth Ganga Dhar vs Shankar Lal & others, (supra). There, this Court observed that the rule against clog on equity of redemption embodied in section 60 of the empowers the Court not only to relieve a mortgagor of a bargain whereby in certain circumstances his right to redeem the mortgage is wholly taken away, but also where that right is restricted. The extent of the latter power is, however, limited by the reason that gave rise to it, namely, the unconscionable nature of the bargain, which, to a court of equity, would afford sufficient ground for relieving the mortgagor of his burden, and its exercise must, therefore, depend on whether the bargain, in the facts and circumstances of any particular case, was one imposed on the mortgagor by taking advantage of his difficult and impecunious position at the time when he borrowed the money. In that case it was held that in a suit for redemption where the mortgage deed, by two distinct and independent terms provided that the mortgage would not be redeemed for eightyfive years all(l that it could be redeemed only after that period and within six months thereafter, failing which the mortgagor would cease to have any claim on the mortgaged property and the mortgage deed would be deemed to be a deed of sale in favour of the mortgagee, and it was clearly evident from the facts and circumstances of the case that the bargain was quite fair and as between parties dealing with each other on equal footing. 1. was held that the term providing for a period of eightyfive years was not a clog on the equity of redemption and the mere length of the period could not by itself lead to an inference that the bargain was in any way oppresive or unreasonable. The term was enforceable in law and the suit for redemption filed before the expiry of the period was premature. It was further held that the term that on the failure of the mortgagor to redeem within the specified period of six months. he would lose his right to do so and the mortgage deed was to be deemed to be a deed of sale in favour of the mortgagee, was clearly a clog 011 the equity of redemption and as such invalid but its invalidity could not in any way affect the validity of the other term as to the period of the mortgage, that stood apart. It was PG NO 844 explained by Sarkar, J. as the learned Chief Justice then was, that the rule against clogs on the equity of redemption is that, a mortgage shall always be redeemable and a mortgagor 's right to redeem shall neither be taken away nor be limited by any contract between the parties. This principle was clearly established by the observations of Lindley M.R. in Santley vs Wilde, where the Master of Rolls observed as follows: "The principle is this: a mortgage is a conveyance of land or an assignment of chattles as a security for the payment of a debt or the discharge of some other obligation for which it is given. This is the idea of a mortgage: and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding. That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption and is therefore void. It follows from this, that "once a mortgage always a mortgage". The right of redemption, therefore, cannot be taken away. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. It was further reiterated at page 515 of the report in Seth Ganga Dhar 's case (supra) that the rule against clogs on the equity of redemption no doubt involves that the Courts have the power to relieve a party from his bargain. If he has agreed to forfeit wholly his right to redeem in certain circumstances, that agreement will be avoided. But the Courts have gone beyond this. They have also relieved mortgagors from bargains whereby the right to redeem has not been taken away but restricted. It is a power evolved by the early English Courts of Equity for a special reason. All through the ages the reason has remained constant and the Court 's power is, therefore, limited by that reason. The extent of this power has, therefore, to be ascertained by having regard to its origin. It is better to refer to the observations of Northington L.C. in Vermon vs Bethell; , and 839. Lord Chancellor observed therein as follows: "This court, as a court of conscience, is very jealous of persons taking securities for a loan, and converting such securities into purchases. And therefore I take it to be an established rule, that a mortgagee can never provide at the PG NO 845 time of making the laon for any event or condition on which the equity of redemption shall be discharged, and the conveyance absolute. And there is great reason and justice in this rule, for necessitous men are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the craft may impose upon them. " The same view was reiterated by Viscount Haldane L.C. in G. and C. Kreglinger vs New Patagonia Meat and Cold Storage Company Ltd., [1914] Appeal Cases 25, where it was observed at pages 35 and 36 of the report as follows: "This jurisdiction was merely a special application of a more general power to relieve against penalties and to mould them into mere securities. The case of the common law mortgage of land was indeed a gross one. The land was conveyed to the creditor upon the condition that if the money he had advanced to the feoffor was repaid on a date and at a place named, the fee simple would revest in the latter, but that if the condition was not strictly and literally fulfilled he should lose the land for ever. What made the hardship on the debtor a glaring one was that the debt still remained unpaid and could be recovered from the feeoffor notwithstanding that he had actually forfeited the land to the mortgagee. Equity, therefore, at an early date began to relieve against what was virtually a penalty by compelling the creditor to use his legal title as a mere security. My Lords, this was the origin of the jurisdiction which we are now considering, and it is important to bear that origin in mind. For the end to accomplish which the jurisdiction has been evolved ought to govern and limit its exercise by equity judges. That end has always been to ascertain, by parol evidence if need be, the real nature and substance of the transaction, and if it turned out to be in truth one of mortgage simply, to place it on that footing. It was, in ordinary cases, only where there was conduct which the Court of Chancery regarded as unconscientious that it interfered with freedom of contract. The lending of money, on mortgage or otherwise, was looked on with suspicion, and the court was on the alert to discover want of con science in the terms imposed by lenders. " PG NO 846 The reason justifying the Court 's power to relieve a mortgagor from the effects of his bargain is its want of conscience. Putting it in more familiar language the Court 's jurisdiction to relieve a mortgagor from his bargain depends on whether it was obtained by taking advantage of any difficulty or embarrassment that he might have been in when he borrowed the moneys on the mortgage. Length of the term, according to Sarkar, J. in the aforesaid decision, was not by itself oppressive and could not operate as a clog on the equity of redemption. There was a term in the mortgage deed that the mortgagees could spend any amount on repairs and those expenses would be paid, according to the account produced by the mortgagees. All that it meant was that in claiming moneys on account of repairs and construction the mortgagees had to show from their accounts that they had spent these moneys. This Court on that basis held that the clause which provided that the mortgage had to be redeemed within the specified period of six months was bad. The principle, however, is that it was not an unconscionable bargain and it did not in effect deprive the mortgagor of his right to redeem the mortgage or so to curtail his right to redeem that it has become illusory and non existent, then there was no clog on equity of redemption. It has to be borne in mind that the English authorities relied upon by Sarkar, J. and the principles propounded by this Court in the case of Seth Ganga Dhar 's, case (supra) were in the background of a sedate and fixed state of affairs. The spiral and escalation of prices of the immovable properties was not then there. Today, perhaps, a different conspectus would be required to consider the right to redeem the property after considerable length of time pegging the price to a small amount of money, the value of which is fast changing. The rights and liabilities of the mortgagor are controlled by the provisions of section 60 of the . The clog on redemption has been noted in Mulla 's . 7th Edition, page 401 that a mortgage being a security for the debt, the right of redemption continues although the mortgagor fails to pay the debt at due date. Any provision inserted to prevent, evade or hamper redemption is void. That is implied in the maxim "once a mortgage always a mortgage". Collins, M.R. in Jarrah Timber & Wood Paving Corporation vs Samuel, [1903] 2 Ch. 1 at page 7 observed that it is the right of a mortgagor on redemption, by reason of the very nature of a mortgage to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. PG NO 847 The doctrine clog on the equity of redemption" is a rule of justice, equity and good conscience. It must be adopted in each case to the reality of the situation and the individuality of the transaction. We must take note of the time, the condition, the price spiral, the term bargain and the other obligations in the background of the financial conditions of the parties. Therefore, in our opinion, in view of the evidence it is not possible to hold that there was no clog on the equity of redemption in these cases. A very large number of decisions have been cited at the Bar. Shri T.U. Mehta, Shri Rajinder Sachar, Shri B.K. Mehta and Shri Dholakia very ably and painstakingly argued this case in respect of their cotentions. Our attention was drawn to the observations of the Allahabad High Court in Chhedi Lal vs Babu Nandan, A.I.R. 1944 Allahabad 204 where it was held that the provision inserted to prevent redemption on payment or performance of the debt or obligation for which security was given, was a clog on equity of redemption. Condition in mortgage was in that case that if mortgagee constructed new building by demolition of mortgaged property which was kachcha structure, mortgagor would pay cost of construction at the time of redemption. Stipulation in circumstances of the case, it was held, did not amount to clog on equity of redemption. It was argued before us by th. mortgagees that the provision for the payment towards cost and expenses of repairs and construction did not amount to a clog on the equity of redemption because the repairs and construction were to be effectuated to keep the property in good condition. In the aforesaid decision Verma, J. at page 207 of the report observed that in the case before the Court it was not pleaded that any pressure and undue influence had been exercised upon the mortgagors. Verma. J referred to the observations of the Viscount Haldane L.C. in G & C. Kreglinger vs New Patagonla Meat and Cold .Storage Co., (supra) and Lindley M.R. in Santley vs Wilde, (supra). Sir Tej Bahadur Sapru argued before Verma, J. that it is not his contention that the mortgagee in this case tried to gain a collateral advantage. His argument was that a onerous term has been incorporated in the deed which placed such a burden on the mortgagor as to make it impossible for him to redeem. There is a freedom of contract between the mortgagor and the mortgagee as observed by Verma, J. at page 207 of the report We must, however, observe that we live in a changed time. Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. PG NO 848 Poverty should not be unduly permitted to curtail one 's right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not, must, however, depend upon the facts and the circumstances of each case. Reference was also be made to the case of Bhika and Anr. vs Sheikh Amir and Ors., A.I.R. 1923 Nagpur 60 where there was no provision under which power was given to the executant of the Deed to pay off the amount which was the consideration for the Deed, and no accounts were to be rendered or required. It was held that relief against an agreement forming a clog on the equity of redemption can only be obtained if it was challenged within a reasonable time. It was an equitable relief which cannot be granted as a matter of course. In that decision Sri Vivian Bose, as the learned counsel appearing for the appellant unsuccessfully sought to obtain relief against an agreement containing a clog on the equity of redemption. Whether in the facts and the circumstances of these cases, the mortgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. Courts do not look with favour at any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unjust and unequitable. The principles of English law, as we have noticed from the decisions referred to hereinbefore which have been accepted by this Court in this country, looks with disfavour at clogs on the equity of redemption. Section 60 of the , in India, also recognises the same position. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it. Bearing the aforesaid back ground in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction there is clog on the equity of redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his PG NO 849 relationship vis a vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom, if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be co related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption. These principles have been recognised by this Court in Ganga Dhar vs Shankar Lal (supra). It has also to be borne in mind that long term for redemption in respect of immovable properties was prevalent at a time when things and the Society were, more or less, in a static condition. We live in changing circumstances. Mortgage is a security of loan. It is an axiomatic principle of life and law that necessitous men are not free men. A mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation for which it is given. The security must, therefore, be redeemable on the payment or discharge of such debt of obligation. Any provision to the contrary, notwithstanding, is a clog or fetter on the equity of redemption and, hence, bad and void. "Once a mortgage must always remain a mortgage", and must not be transformed into a conveyance or deprivation of the right over the property. This is the English law based on principles of equity. This is the Indian law based on justice, equity and good conscience. We reiterate that position. Though, long term by itself as the period for redemption, is not necessarily a clog on equity but in the changing circumstances of inflation and phenomenal increase in the prices of real estates, in this age of population explosion and consciousness and need for habitat, long term, very long term, taken with other relevant factors, would create a presumption that it is a clog on equity of redemption. If that is the position then keeping in view the financial and economic conditions of the mortgagor, the clause obliging the payment of interest even in case of usufructuary mortgage not periodically but at the time of ultimate redemption imposing a burden on the mortgagor to redeem, the clauses permitting construction and reconstruction of the PG NO 850 building in this inflationary age and debiting the mortgagor with an obligation to pay for the same as an obligation for redemption, would amount to clog on equity. Section 60 of the , conferred on the mortgagor the right of redemption. This is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. See the observations in R. Ghose "Law of Mortgage" 6th Edn. page 227. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of its background of the particular case. The doctrine of clog on equity of redemption has to be moulded in the modern conditions. See Mulla: ' ', 17th Edn. Law does not favour any clog on equity of redemption. It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything to the contrary in the Statute, Court must take cognisance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged. In the facts and the circumstances and in view of the long period for redemption, the provision for interest (1/2% per annum payable on the principal amount at the end of the long period, the clause regarding the repairs etc., and the mortgagor 's financial condition, all these suggest that there was clog on equity. The submissions made by Mr. Sachar and Mr. Mehta are, therefore, unacceptable. In that view of the matter, we are of the opinion that the decision of the High Court as well as the Courts below that there existed clog on the equity of redemption in case of these mortgages, is correct and proper, and we hold so accordingly. Before we dispose of the contentions on the second aspect, we must deal with some of the decisions of the Gujarat High Court to which reference had been made and some of which also referred before us. We have noticed the decision of the PG NO 851 Gujarat High Court in Khatubai Nathu Sumra vs Rajgo Mulji Nanji and others, (supra). In Maganlal Chhotalal Chhatrapati and Ors. vs Bhalchandra Chhaganlal Shah, 15 Gujarat Law Reporter 193. P.D. Desai, J. as the learned Chief Justice then was, held that the doctrine of clog on the equity of redemption means that no contract between a mortgagor and mortgagee made at the time of the mortgage and as a part of the mortgage transaction or, in other words, as a part of the loan, would be valid if it in substance and effect prevents the mortgagor from getting back his property on payment of what is due on his security. Any such bargain which has that effect is invalid. The learned Judge reiterated that whether in a particular case long term amounted to a clog on the equity of redemption had to be decided on the evidence on record which brings out the attending circumstances or might arise by necessary implication on a combined reading of all the terms of the mortgage. The learned Judge found that this long term of lease along with the cost of repairing or reconstruction to be paid at the time of redemption by the mortgagor indicated that there was clog on equity of redemption. The learned Judge referred to certain observations of Mr. Justice Macklin of the Bombay High Court where Justice Macklin had observed that anything which does have the appearance of clogging redemption must be examined critically, and that if the conditions in the mortgage taken as a whole and added together do create unnecessary difficulties in the way of redemption it seems that is a greater or less clog upon the equity of redemption within the ordinary meaning of the term. In our opinion, such observations will apply with greater force in the present inflationary market. The other decision to which reference may be made is the decision of the Gujarat High Court in Soni Motiben vs M/s. Hiralal Lakharnshi, 22 Gujarat Law Reporter 473. This also reiterates the same principle. In Vadilal Chhaganlal Soni and Others vs Gokaldas Mansukh and Others, also, the same principle was reiterated. In that case, it was held by Gajendragadkar J., as the learned Chief Justice then was, that the agreement between the mortgagor and mortgagee was that the mortgagor was to redeem the mortgage 99 years after its execution and the mortgagee was given full authority to build any structure on the plot mortgaged after spending any amount he liked It was held that the two terms of the mortgage were so unreasonable and oppressive that these amounted to clog on the equity of redemption. Similar was the position in the case of Sarjug Mahto and other. vs Smt. Devrup Devi and Others A.I.R. l963 Patna 114, where also the mortgage was for 99 years. In Chhedi Lal vs Babu Nandan 's case (supra), the court reiterated that freedom of contract unless it is vitiated by undue influence or pressure of poverty should be giver. a PG NO 852 free play. In the inflationary world, long term for redemption would prima facie raise a presumption of clog on the equity of redemption. See also the observations in Rashbehary Ghose ' 'Law of Mortgage ' 6th Edn. pages 227 and 228. Bearing the aforesaid principles in mind we must analyse the facts involved in these appeals. It has been noticed in S.L.P. (Civil) No. 8219 of 1982 that the High Court of Gujarat by its order impugned had dismissed the second appeal. The High Court had merely observed in dismissing the second appeal that the First Appellate Court had followed the decision of the Gujarat High Court in Khatubai Nathu Sumra vs Rajgo Mulji Nanji and Others, (supra). We have noted the salient features of the said decision. The High Court, therefore, found no ground to interfere with the decision of the First Appellate Court and accordingly dismissed the second appeal. The First Appellate Court by its judgment disposed of Civil Regular Appeal No. 149 of 1978 and another civil appeal which was the appeal by the tenant was also disposed of by the said judgment. The learned Judge of the Appellate Court had referred to the ratio of the decision in Gangadhar vs Shankerlal (supra). The learned Judge bearing in mind the principle of the aforesaid decision and the relevant clause of Ext. 103 came to the conclusion that the clauses amounted to clog on the equity of redemption in the facts of this case. Shri Sachhar tried to urge before us that on the evidence and the facts in this case having regard to the position of the parties, the transaction did not amount to clog on the equity of redemption. It was emphasised by the First Appellate Court that the fact that the son of the mortgagor subsequently became Civil Judge would not affect the position because what was relevant was the financial condition at the time of the transaction. We have further to bear in mind that it has come out in the evidence that the father of the plaintiff was residing in the suit property at the relevant time and there was no other residential house except the suit property. The First Appellate Court, therefore, emphasised in our opinion rightly that if there was no pressure from the creditor, no body would like to mortgage the only house which is sole abode on the earth. In that view of the matter and in view of the position in law, we are of the opinion that the First Appellate Court was right in the view it took. The First Appellate Court referred to the decision of Kunjbiharilal vs Pandit Prag Narayan, AIR 1922 Oudh 283. In that case there was a condition that the mortgagor should PG NO 853 pay interest along with the principal amount at the time of redemption after 50 years. It was held that the intention was to see that right of redemption could never be exercised. If the condition was such which would result in making redemption rather difficult, if not impossible, it would be a dog on the equity of redemption and could not be enforced. Similar was the position of the Allahabad High Court in Rajai Singh vs Randhir Singh, A.I.R. 1925 Allahabad 643. There the term fixed for redemption was of 96 years and there was a stipulation for payment of interest along with principal not periodically but only at the time of redemption. In the instant case before us the mortgagor was required to pay the whole amount of interest at the end of 99 years which will practically make the redemption impossible. Applying the well settled principles which will be applicable to the facts of this case in determining whether there was in fact a clog on the equity of redemption, we are of the opinion what the First Appellate Court was right in holding that there was a clog on equity of redemption. On the second aspect of the question whether the right of the tenants of the mortgagees are protected after the redemption of mortgage, reliance was placed by the First Appellate Court on the decision of the Full Bench of the Gujarat High Court in Lalji Purshottam vs Thacker Madhavji Meghaji, (supra). There urban immovable property was mortgaged with possession, mortgagee creating lease during the subsistence of the mortgage. The question was whether after redemption of mortgage such lease is binding on the mortgagor. It was held that Section 76(a) of the would not apply to such cases. There must be express words showing an intention if tenancy was to be created beyond the term of the mortgage. Mere reference that mortgagee is entitled to lease property does not create a binding tenancy on the mortgagor. After the redemption of the mortgage the relationship of landlord and tenant does not exist. Such tenant, therefore, does not get any protection under section 12 of the Bombay Rent Control Act, it was held. The Gujarat High Court had referred to several decisions of this Court. In Mahabir Gope vs Harbans Narain Singh, ; which was a decision dealing with a lease created by a mortgagee with possession under the Bihar Tenancy Act, this Court reiterated that the general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further the mortgagee, who take possession of the mortgaged property, must manage it is Person of ordinary prudence would manage if it were his own; PG NO 854 and he must not commit any act which is destructive or permanently injurious to the property. Reliance may be placed for this purpose on section 76, clauses (a) and (e) of the . It was held that the provisions of sections 20 and 21 of the Bihar Tenancy Act, did not apply to the lessees since they were not 'settled raiyats ' and the lessees could not claim to have secured under the statute occupancy rights in the land. It was further held that the mortgagor was entitled to the possession of the land upon redemption of the mortgage. In a slightly different context in Harihar Prasad Singh vs Must. of Munshi Nath Prasad; , this Court was concerned with a mortgage with possession effected on agricultural land. This Court had to consider in that decision whether under the provisions of the Bihar Tenancy Act the tenant inducted on the mortgaged property during the pendency of the mortgage could claim right to remain in possession after the redemption. Venkatarama Ayyer, J., speaking for the Court pointed out that if the tenant could not resist the suit for ejectment either by reason of section 76(a) of the or section 2 1 of the Bihar Tenancy Act, the tenant could not get such a right as a result of the interaction of both those sections. This Court ultimately held that the tenants inducted by the mortgagee with possession had failed to establish that they had any right of occupancy over the suit lands and that the plaintiffs were entitled to a decree in ejectment, with future mesne profits as claimed in the plaint. Thus a right claimable under section 76(a) of the because of a lease created in the course of prudent management of the property was put on a different footing altogether from a right created by a special statute. Similarly, in Asa Ram vs Mst. Ram Kali. , the question before this Court was again of mortgage of agricultural land when the mortgage was with possession and of the tenant inducted by the mortgagee with possession. In Dahya Lal vs Rasul Mohammed Abdul Rahim, [ ; , this Court was concerned with the case of a tenant inducted on agricultural land by a mortgagee in possession. There under the Bombay Tenancy and Agricultural Lands Act, 1948, a tenant lawfully inducted by the mortgagee on the land would on redemption of the mortgage be deemed to be a tenant of the owner mortgagor under section 4 of the Bombay Tenancy and Agricultural Act. This Court held that all persons other than those mentioned in clauses (a), (b) and (c) of section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948, who lawfully cultivated land belonging to other persons whether or not their authority was derived directly from the PG NO 855 owner of the land must be deemed tenants of the lands under section 4 of the said Act. So, therefore, the Bombay Tenancy Act required at the relevant time the lawful cultivation by tenant. This Court had also considered this question in Prabhu vs Ramdev, ; There the same problem again arose in connection with a person inducted into agricultural land as a tenant by an usufructuary mortgagee and the question was whether the rights of such a tenant were protected by the provisions of the Rajasthan Tenancy Act, 1955. In view of the special status, the tenant in question was held to be entitled to the protection. It must be noted as observed by the Full Bench of the Gujarat High Court that all the cases that we have so far considered are cases of agricultural lands and in each of these cases the question was examined from two points; first, whether the lease could be said to be a lease granted in the course of prudent management and, in the alternative, whether the rights of the tenant inducted by the mortgagee with possession had been enlarged as a result of a special statute dealing with the rights of tenants of agricultural lands. This question, however, has been agitated before this Court in the background of the non agricultural lands especially in urban areas. In All India Film Corporation vs Raja Gyan Nath, , the question was in respect of lease of a cinema house granted by the mortgagee with possession. Hidyatullah, C.J. delivering the judgment of the Court. observed in paragraph 7 that a general proposition of law is that no person can confer on another a better title than he himself has. A mortgagee is a transfer of an interest in specific immovable property for the purpose of securing repayment of a loan. A mortgagee 's interest lasts only as long as the mortgage has not been paid off. It was further observed by the learned Chief Justice that on redemption of the mortgage the title of the mortgagee comes to an end. It was held that section 111(c) of the provides that a lease of immovable property determines where the interest of the lessor in the property terminates on, or his power to dispose of the same, extends only to the happening of any event by the happening of such event. The duration of the mortgagee 's interest determines his position as the lessor. But there is one exception. That flows from section 76(a) which lays down liabilities of a mortgagee in possession. It is provided there that when during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he must manage the property as a person of ordinary prudence would manage it if it were his own. It was observed that this principle applied ordinarily to the management of agricultural lands and has been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special PG NO 856 statutes. It was emphasised by the Chief Justice that lease would continue to bind the mortgagor or persons deriving interest from him if the mortgagor had concurred to grant it. Ultimately, this Court in that case held that on the termination of the mortgage in the events that had happened in that particular case, that since there was no landlord and no tenant, the provisions of the Rent Restriction Act could not apply beyond the date of the termination of the mortgagee 's interest. Similar, is the view in the case of Sachalmal Parasram vs Ratnabai, There, the question was whether the tenant was protected under the Madhya Pradesh Accommodation Control Act, 1961. The Court did not accept the rights of the tenant in possession. The question whether the tenant from usufructuary mortgagee of building was entitled to protection on redemption of mortgage, was considered by the Full Bench of the Madras High Court in S.V. Venkatarama Reddiar vs Abdul Ghani Rowther & Ors., A.I.R. 1980 Mad. 276. There Justice Natarajan, as the learned Judge then was, of the Madras High Court delivering the judgment of the Full Bench of the said Court held that if a tenancy was created by a mortgagee with possession, the ties of landlord and tenant were snapped eo instanti the mortgage is redeemed and, unless there is a fresh forging of the relationship of landlord and tenant between the mortgagor and the erst while tenant by (i) the voluntary act of the parties or (ii) a deemed forging of the relationship by express provision in the Act itself, the erstwhile tenant cannot claim protection under the Act so as to perpetuate his occupation of the building as a tenant. The rule of exception contained in Section 76(a) of the T. P. Act cannot be readily and automatically invoked by a tenant let into possession of urban property by a mortgagee with possession. The principle of exception afforded by section 76(a) of that Act applies ordinarily to the management of agricultural lands and has seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes. It may be open to a tenant inducted upon urban property by a mortgagee with possession to rely upon Section 76(a) to claim tenancy right for the full term of the tenancy notwithstanding the redemption of the mortgage earlier. But, it is for the person who claims such benefits to strictly establish the binding nature of the tenancy, created by the mortgagee, on the mortgagor. Reference may be made to a Full Bench decision of the Rajasthan High Court in Devkinandan and another etc. vs Roshan Lal and others, A.I.R. where several relevant authorities have been discussed. The question before the Full Bench was whether a tenant of a mortgagee in possession is entitled to PG NO 857 the protection of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against the mortgagor after the redemption of the mortgage. P.K. Banerjee, C.J. delivering the judgment of the Court after discussing all relevant authorities held that in respect of tenancy of urban property or premises, the mortgagee in possession has no right to jeopardise the right of the mortgagor by giving a tenancy which would continue even after the redemption of the mortgage. This negates the submission that as a matter of prudent management the tenants had been inducted and after induction the tenants got their rights enlarged. In Lalji Purshottam vs Thacker Madhavji Meghaji, (supra), where the Full Bench of the Gujarat High Court had considered the effect of continuation of tenancy under the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 which are precisely the cases in the facts of the instant appeals, after discussing all the relevant provisions of the Act including the theory of the prudent management the Full Bench of the Gujarat High Court observed that where a lease is created by the mortgagee in possession of an urban immovable property, such a lease would not be binding on the mortgagor after redemption of mortgage assuming that the lease is such as a prudent owner of property would have granted in usual course of management. The Court observed that that was so because section 76(a) could not apply to a case of urban immovable property and hence a lease created by the mortgagee in possession of an urban immovable property would not be binding on the mortgagor after redemption of the mortgage. Even apart from section 76(a) of the if the words of the mortgage deed clearly and indubitaly express an intention to allow expressly creation of a tenancy beyond the term of the mortgage, then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor. If the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage, the mere fact that the mortgage deed authorises the mortgagee with possesion to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage. In such a case a tenant inducted on the property by a mortgagee with possession when the tenancy of that tenant is not binding on the mortgagor after the redemption of the mortgage, is not protected under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. We are of the opinion that the aforesaid view expressed by the Chief Justice Diven on behalf of the Full Bench represents the correct position in law in respect of the second aspect of the question canvassed before us. PG NO 858 We have noticed the view of the Full Bench of the Rajasthan A High Court on this aspect. This question was again envisaged by this Court in the background of the Rajasthan Premises Act in Om Prakash Garg vs Ganga Sahai & Ors., holding that on passing of the final decree of redemption of the mortgage, the lease did not subsist and the tenant is not entitled to protection under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. Again viewing this question in the context of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 in Jadavji Purshottam v Navnitbhai Amaratlal & Ors., [1987] 4 SCC 223, in which the judgment was delivered by Natarajan J., and one of us was a party to that decision, it was held that it was recognised by this Court in a number of cases that the question of imprudent management of the mortgaged property by the mortgagee would not arise where the rights of the tenant were enlarged by the tenancy legislation enacted after the tenant was put in possession by the mortgagee. Hence, in that case the question was whether the tenancy rights of the appellant tenant, who was inducted by the mortgagee, came to be enlarged by tenancy legislation after he was put in possession by the mortgagee. The fact founding that case was that the tenant appellant was not inducted into possession soon after the execution of mortgage deed and the mortgagee was put in possession of the property but long thereafter. In fact, there was already a tenant on the mortgage Property when the mortgagee was put in possession. During the period o f tenancy of that tenant the Saurashtra Act 22 of 1951 came to be enacted and gave protection to the tenants from paying exorbitant rent and from unreasonable eviction. Despite the enlargement of his tenancy right by the Act. that tenant vacated the lease premises in 1956 and thereafter the mortgagee inducted the appellant in possession. It was held that that was a case where the Saurashtra Act was already in force when the appellant cannot be inducted into possession. The tenancy rights of the appellant cannot be said to have become enlarged after the mortgagee granted him the lease by subsequent legislation enacted for affording protection to tenants. The fact that the mortgagee had granted lease only for period of one year will not alter the case in any manner as not only had the mortgagee executed the lease deed after the expiry of the lease period but also because the restriction of the lease period to one year was of no consequence in view of the provisions contained in the Saurashtra Act 22 of 1951. The enlargement of the tenancy rights cannot also be claimed on the basis of the fact that the Bombay Rent Act had been enacted after the appellant was inducted into the property because the Saurashtra Act was already In force when the mortgagee granted lease to the appellant and it was only from January ' 64 the Bombay Rent PG NO 859 act came to replace the Saurashtra Act. In Civil Appeal No. 9993 of 1982, Pomal Kanji Govindji & Ors. vs Vrajlal Karsandas Purohit ,& Ors. , Shri B.K. Mehta took us to the factual background. The appellants who are tenants in the mortgage properties being defendants Nos. 4 to 9 in the original suit had resisted the suit for redemption and contended that the plaintiffs were not entitled to recover possession from them since their rights are protected under the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 and the said Act has applied to the area of kutch in the Bombay State. Therefore, no decree for eviction could be passed against them except in accordance with the provisions of the said Act. The High Court held that redemption of mortgage was possible and the suit was maintainable as mentioned hereinbefore. However, as regards the question of protection of the tenants under the Bombay Rent Act, Shri Mehta proceeded to submit that the learned Judge did not make any finding as to when the tenants were inducted nor did he express his opinion about the evidence of respondent No. 5. Shri Mehta further submitted that the learned Judge did not make any finding as to when their tenants were inducted, either before or after the rent restriction Act was made applicable to the area of Kutch. On that basis, following the Full Bench decision of the Gujarat High Court in Lalji Purshottam vs Thacker Madhavji Meghaji, (supra), the courts below rejected the claim of he tenants. Shri Mehta submitted hat the High Court has erred in not following the settled legal position entrenched by a line of decision of this Court that he rights of a tenant inducted by a mortgagee with possession would enure beyond the period of redemption of the mortgage if his rights are enlarged by subsequent tenancy legislations in force in the area in which the property is situated. He drew our attention to the decision in the case of Mahabair Gope vs Harbans Narain, (supra). There as mentioned hereinbefore this Court had found that the provisions of sections 20 and 21 of the Bihar Tenancy act, did not apply to the lessees since they were not `settled raiyats '. Shri Mehta also drew our attention to the observations of this Court in Asa Ram vs Mst. Ram Kali, (supra). He also drew our attention to Dahya Lal vs Rasul Mahommed, (supra) which we have discussed hereinbefore. Similar, was the position in Prabha vs Ramdev (supra) which is also being discussed hereinbefore. Reference was made to the decision in All India Film Corporation vs Gyan Nath, (supra), the basis of which has been explained hereinbefore. The said decision will not be applicable in respect of the facts and circumstances of the case and in view of the terms of the renancy. Our attention was drawn by Shri Mehta to the observations of this Court in Madan Lal vs Badri Narain and others, [1987] 3.S.C.C. 460. In that case, it was contended before this Court that there PG NO 860 was no such rule of general acceptance that a lease of urban property by the mortgagee in possession cannot be regarded to be an act of prudent management within the meaning of section 76(a) of the which carves out an exception to the general rule that a mortgagee in possession cannot create, in the tenant inducted by him, a right to continue in possession beyond the period of redemption. Before this Court, in that case, a reference was made to the Full Bench decision of the Rajasthan High Court in Devkinandan vs Roshan Lal, (supra). But in view of the facts that there was no definite finding the question whether the alleged lease was an act prudent management on the part of the mortgagee in possession in terms of section 76(a) was left open and that to be determined by the learned trial Judge. It has been held by this Court in numerous decisions that in case of immovable properties in urban areas, unless the leases specifically and categorically make an exception in favour of the tenant that they would continue in possession even after the expiry of termination of the leases, and those leases were acts of prudent management, in no other case, the tenants inducted by the mortgagee would be titled to the production under the Rent Act after the redemption of mortgage. In this connection, it will be appropriate here to refer to the position as mentioned in the Mulla 's ` ', 7th Edn. pages 513 and 514, which is as follows: "Whether a mortgagee in possession can by reason of clause (a) grant a lease of the mortgaged property has been considered in several decisions of the Supreme Court. In Mahabir Gope vs Harbans Narain, ; , the Supreme court observed that the right conferred under clause (a) was an exception to the general rule that a person cannot confer a better title on another than he possesses himself. The Court pointed out that it followed that though a mortgagee may, if it is prudent, grant leases, these would determine on redemption. The Court recognised, however, that in some cases the granting of a lease in the course of prudent management might result in the tenant acquiring rights under other laws so that he could not be evicted by the mortgagor, but this was an exception, and could not apply where the mortgage deed prohibits such a lease either expressly, or by necessary implication. These observations do not appear to have been followed in Harihar Prasad Singh vs Deonarayan Prasad, ; where the Suprerne PG NO 861 Court held that even a lease created by a mortgagee in possession in the course of prudent management though binding on the mortgagors after redemption, could not create the rights of a raiyat on the tenants. The question was next considered in Asa Ram vs Ram Kali, , where the Supreme Court held that the creation of a lease which would create occupancy rights in favour of the tenants could not be regarded as a prudent transaction. In Prabhu vs Ramdev; , however, the Supreme Court without referring to Asa Ram s case held that a tenant of a mortgagee can invoke the benefit of subsequent Tenancy legislation which provided that such a tenant could not be evicted except in the circumstances set out in that legislation. The Court explained Mahabir Gope 's case as being a decision given with reference to the normal relationship of landlord and tenant. and stressed that the Supreme Court in that case had contemplated an extraordinary situation arising from a tenant acquiring rights under other laws. The Court explained Harihar Prasad Singh 's case as having been decided on the peculiar facts of the case, viz,. that in that case the tenants were not entitled under the Local law to invoke the protection of that law. In Film Corporation Ltd. vs Gyan Nath, the Supreme Court again considered the question. The Court did not refer to either Harihar Prasad Singh,s case (supra) or Prabhu vs Ramdev (supra). The Court observed that the principle laid down in Mahabir Gope 's case (supra) that a bona fide and prudent lease would bind the mortgagor "ordinary ' ' applies only to agricultural lands and has "seldom" been extended to urban property. This observation is strictly speaking, obiter, as the Court found that the lease in question was neither bona fide nor prudent in view of the long term and the low rent. It is respectfully submitted that there is no warrant for limiting sec. 76(a) to agricultural land. Whether a particular lease is bona fide or prudent is a question of fact; obviously a lease of urban land which would confer on the lesson the protection of special statutes such as the Rent Acts would prima facie be imprudent. In Sachalmal Parasram vs Ratanbai, , however, the Supreme Court has repeated the obiter observation in the Film Corporation case (supra) that except in the case of agricultural land acts of a mortgagee would not bind the mortgagor. PG NO 862 It is respectfully submitted that the position could be more satisfactorily stated with reference to the language of clause (a). The right conferred by that clause is to manage the property during the subsistence of the mortgage. It is unlikely that a prudent manager would create a lease for a period longer than the mortgage, or in circumstances which would give the lessee rights after the redemption of the mortgage. Such leases would prima facie be imprudent, and not binding on the mortgagor as beyond the powers conferred by clause (a). If, however, it can be shown in any given case that such a lease was prudent, it would bind that mortgagor, even after redemption, and even though the lessee acquires thereunder rights of a permanent or quasi permanent nature. No question of imprudence can arise where, as in Prabhu vs Ramdev, ; the rights of the tenant were enlarged by Tenancy legislation enacted after the tenant was put in possession by the mortgage. It is submitted that this statement of the law is consistent with all the Supreme Court decisions quoted above. " We are of the opinion that the rationale of the various decisions of this Court have been explained by Chief Justice Diven in the Full Bench decision of the Gujarat High Court in Lalji Purshottam vs Madhavji Meghaji, (supra) which is the correct enunciation of law The learned Chief Justice observed at pages 514 and 515 of the report as follows: "In our opinion, on the general aspect of the matter based on facts on which judicial notice can be taken it is clear that so far as leases of agricultural lands are concerned, when a lessee cultivates land by the very process of cultivation he brings inputs and improves the fertility of the soil. Constant and continuous cultivation by proper manuriny etc. would improve the fertility of the soil and on the determination of the lease, that fertility would still remain in the land. It is, therefore, necessary that security of tenure should be given to the tenant of agricultural land so that by his proper husbandry and agricultural practices, he himself may derive good benefits from the land and also improve the fertility of the soil. It is because of this aspect that in all countries legislation has been enacted to protect the actual tiller of the soil, fixity of tenure has been given and all the different measures of tenancy legislation regarding agricultural lands PG NO 863 have provided for sufficiently long leases and protection of his tenure so as to induce the agriculturist to put in his best efforts and best inputs as they are called now a days, during the term of the lease. A prudent owner of property would, therefore, see to it that the term of lease which he grants in respect of agricultural land is sufficiently long to induce the tenant to put in the best efforts which would incidentally benefit the owner of the land by improving the fertility of the land itself. In contrast, to the agricultural lands. so far as non agricultural and urban lands are concerned, on determination of the lease the tenant who has been on the property under the terms of the lease is bound to put back the property in the condition in which it was at the time when he entered into possession and nothing is normally done by the tenant which is likely to improve the quality of the soil property by his own ettorts put in during the terms of the tenancy. There is, therefore, no question of a prudent owner of urban immovable property granting a long term lease merely with a view to improve the quality of the land. Barring Rent Control and Rent Restriction Act which deal with urban immovable property, in areas where there is scarcity of accommodation both for residential and nonresidential purposes, there is no concept of protection to tenants of urban immovable property. We are of opinion that this is the rationale behind the distinction which the Supreme Court has pointed out between leases of agricultural lands and leases of urban immovable property while dealing with the provisions of sec. 76(a) of the , whereas a a prudent owner would not ordinarily speaking think of creating a long term lease purely as a matter of prudent management, an owner of agricultural land in the course of prudent management would create a long term lease purely from the aspect of prudent management. In our opinion therefore, the word "seldom" used Hidayatullah C.J. in All India Film Corporation 's case (supra) while dealing with the application of the exception carved out by see 76(a) to urban immovable property has to be read as not being extended at all and it is merely a term of the phrase to say that this exception has seldom been extended to urban immovable property. " PG NO 864 We have noted hereinbefore the ratio and the basis of the decision of this Court in Jadavji Purshottam vs Dhami Navnitbhai Amaratlal (supra). Shri Mehta submitted that there was no clear finding as to when the tenants were inducted whether before or after the Rent Restriction Act and therefore, he pleaded that the matter should be referred to the larger Bench. In view of the facts found in this case which were similar to the facts mentioned in Jadavji Purshottam 's case, (supra) there is no specific authority in the lease which stated that the lease would continue beyond the period of mortgage. There is no extended authority as contemplated in Jadavji Purshottam 's case found in this case. The submission was that the matter should be considered by a larger Bench in the light of the Jadavji Purshottam 's case (supra). We are unable to accept the said submission. In this case the words in the mortgage deed, as we are taken through, did not clearly allow creation of tenancy beyond the period of mortgage. That, in any event, would not have been prudent management. hence, there is no finding that the mortgage deed permitted, either expressly or impliedly. creation of tenancy beyond the period. We think that the tenants were not entitled to protection after redemption of mortgage. Furthermore, in all these cases the authority of the mortgagees to lease out the property, expressed or implied, was circumscribed by a stipulation that the mortgagee should re deliver the possession of the property when the mortgage was redeemed. In that context, we are of the opinion that the submissions on behalf of the tenants cannot be entertained. As mentioned hereinbefore, Sh. B.K. Mehta, especially in the background of the facts in C.A. No.9993/83, has made certain submissions relying on the observations of this Court in Jadavji Purshottam 's case (supra). That decision requires recapitulation of the basic principle. That decision reiterated that the tenant appellant therein was not inducted into possession soon after the mortgage deed was executed and the mortgagee was put into possession of the property hut long thereafter. It is not necessary to detain us on the facts of this case. The basis of that decision was: whether the Saurashtra Act was already in force. The appellant therein was inducted into possession and his tenancy rights could not have become enlarged after the mortgagee granted him the lease by a subsequent legislation enacted for affording protection to tenants. In this case, relying on the said decision it may be reiterated that the tenancy right was not created by a mortgagee in possession, wherein the mortgagor had not concurred in the grant of a lease beyond the period of mortgage. The question in that decision was whether the lease granted to the tenant by the appellant had the approval or concurrence of the PG NO 865 mortgagor so as to entitle the tenant to claim tenancy right even against the mortgagor after redemption of the mortgage. In all these cases the major term in the mortgage deed was that the possession would be delivered on redemption. In none of these cases was there any term, at least none was adverted to, which stipulated any condition in the mortgage deed which entitled the mortgagees to create tenancy beyond the period of the mortgage. This factor along with the condition in the mortgage deed postulating the obligation to deliver possession at the expiry of the term of mortgage to the mortgagors, in our opinion, are the decisive factors showing that the tenants did not get their rights enlarged on the coming into force of the subsequent Rent Legislation. The very Preamble to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicates that it was "An Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions (and also to control the charges for licence of premises etc.)". It was thought expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises. But that, in our opinion, has indeed never been construed as enlarging the rights of any group of tenants who were not the tenants of the mortgagors. Hence, the question of enlargement of right by tenancy legislation of persons who were in occupation but had no rights as tenants of the mortgagors, would not arise in the context of these cases. Incidentally, it may be referred that in appeal from S.L.P. No. 8219/82, this question does not arise. In C.A. No. 1286/81, the tenancy after the period of mortgage was not bona fide. In C.A. No. 9993/83, it was submitted that the tenants were inducted after the mortgage on 28th April, 1943. The Bombay Rent Act was made applicable to the area of Kutch in September, 1951. See Dalal 's Rent Act 4th Edn. page 814 on that basis it was submitted that as there was no Act in the area of Kutch which is in pari materia with the Bombay Rent Act and therefore the rights of the tenants were enlarged by the subsequent Act. In view of the tact that the mortgage deed did not contemplate rights of the mortgagees to grant tenancy beyond the period of mortgage, and had imposed an obligation that on the expiry of the period of mortgage, mortgagors were entitled to the possession of the demised premises . In our opinion, these contentions cannot be entertained. PG NO 866 Incidentially, it may also be mentioned that in C.A. No. 1286/81, the suit property was mortgaged in 1948 for a period of 5 years. The tenant was inducted by the mortgagee in 1955. The period of mortgage had expired in 1953. Apparently, the mortgagee had inducted the tenant after expiry of the period of mortgage, and such a conduct was grossly imprudent management, and was not bona fide. Such tenant cannot, in any event, claim any protection. Having considered the facts and the circumstances and the ratio of the decision in Jadavji Purshottam 's case (supra), we are clearly of the opinion that the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgagee and the tenancy created ia favour of the tenants by the mortgagor did not have the concurrence of the mortgagor so as to claim tenancy rights even after redemption of the mortgage. See the observations in para 12 of the Jadavji Purshottam 's case (supra). In the premises, the appeals must fail and are dismissed. Civil Miscellaneous Petition in C.A. No. 397/80 must also fail and is dismissed. The parties will pay and bear their own costs. A.P.J. Appeals dismissed.

In the matter giving rise to the Special Leave Petition (Civil) No. 8219 of 1982 the plaintiffs filed a suit alleging that their father, who dies in the year 1956, had mortgaged the suit property for 30,000 Koris by a registered mortgage deed dated 20th April, 1943, executed in favour of the power of attorney holder and manager of the defandants Nos. l and 2. The defendant No. 3 is the heir of the attorney who was also managing the properties of the defendants Nos. I and 2. The mortgage property consisted of two delis having residential houses, shops, etc. The mortgagees had inducted tenants in the suit property being defandants Nos. 4 to 9 in the original suit. When the mortgage transaction took place the economic condition of the father of the plaintiffs was weak and he was heavily indebted to others. Taking advantage of that situation, the mortgagees took mortgage deed from him on harsh and oppressive conditions by getting incorporated a long term of 99 years for redemption of mortgage. Though possession was to be handed over to the mortgagees, they took condition for interest on the part of principal amount in the mortgage deed. Mereover, the mortgagees were given liberty to spend any amount they liked for the improvement of the suit property and were also permitted to rebuild the entire property. A registered notice to the defendants Nos. I and 2 was given to redeem the mortgage, but they failed to do so, hence, the present suit was filed to redeem the mortgage and to recover actual possession from the defendants Nos. 4 to 9 who were the tenants Inducted by the mortgagees. PG NO 827 Defendant No. 1 resisted the suit alleging that the term of the mortgage was for 99 years, so the suit filed before the expiry of that period was premature. The defendant No. 3 resisted the suit by filing the written statement. The defendants Nos. 4 to 9 resisted the suit on the grounds that the plaintiffs were not entitled to redeem the mortgage and even if they were so entitled, they could not get actual physical possession from the tenants who were protected by the Bombay Rent Act, because they were inducted by the mortgagees. The Court proceeded against defendants Nos. 2/1 to 2/7 (heirs of mortgagee defendant No. 2) ex parte, and a preliminary decree for redemption of mortgage was passed on 2nd April, 1974 by the Trial Court. But this ex parte decree was set aside by the District Court in the appeals filed by the heirs of defendant No. 2 on the ground that summons of the suit had not been duly served upon them. Thereafter defendent No. 2/1 filed his written statement alleging that the suit was bad for non joinder of the sisters of the plaintiffs as parties. Moreover, as per the terms and conditions of the mortgage deed, there was usufructuary mortgage for 20,000 koris, and the remaining 10.,000 koris were advanced to the mortgagor at monthly interest at the rate of 1/2 per cent. There was a condition in the mortgage deed that the mortgagor would pay principal amount us well as the interest at the time of redemption. When the suit was filed in the year 1972, the mortgagees were entitled to recover interest on 10,000 Koris for a period of 29 years, that the total mortgage amount along with interest would come to 47,400 koris equivalent to Rs. 15800 and the Civil Judge had no jurisdiction to try such suit; that the court fees was also not sufficient; that it was not true that the father of the plaintiffs was of weak economic condition. The grand father of the plaintiffs was as Advocate and the father of the plaintiffs was the clerk of an advocate. 'The plaintiff No. l was also working as an Advocate at the time of the mortgage, so they knew the legal position; that at the relevant time the prevalent custom in Kutch State was to take mortgages of long term for '99 years and when it was permissible to take mortgage deeds with such a long term, it was also necessary to give permission for rebuilding the whole property, for better enjoyment of lt. So these terms could not amount to clog on equity of redemption of mortgage, the mortgagees did not take any undue advantage and they were not present physically when the transaction took place through their power of attorney holders. If the conditions of mortgage deed did not amount to clogs on equity of redemption, the suit would be clearly premature. The plaintiff No. I had subsequently became a Civil Judge and was ultimately the Chairman of the Tribunal so if the said terms and conditions of the mortgage were onerous and oppressive, he would not have sat idle for 29 years. But he remained silent because he was aware of the PG NO 828 said custom. The prices of immovable properties had increased tremendously, therefore, the suit had been filed with mala fide intention; that in case the Court comes to the conclusion that there was a clog on equity or redemption and the plaintiffs were entitled to the redemption, then the interest on 10,000 koris should be awarded to the mortgages; and that the suit should be dismissed as there was no clog on equity of redemption and the Court had no jurisdiction to try the suit. The other defendants remained absent. The Trial Court while decreeing the suit came to the conclusion that there was mortgage transaction between the father of the plaintiffs and the mortgagees on 20th April, 1943, that the terms and conditions in the mortgage deed being harsh and oppressive, amounted to clog on equity of redemption, so the plaintiffs were entitled to file the suit even before the expiry of the term of the mortgage; that the sisters of the plaintiffs were not necessary parties to the suit and even if they were, a co mortgagor was entitled to file the suit for redemption so the suit was not bad for want of non joinder of necessary parties; that it had jurisdiction to try the suit; that the mortgagees were not entitled to claim interest on 10,000 koris and that the plaintiffs were entitled to recover possession from the defendants Nos. 4 to 9 who were the tenants inducted by the mortgagees. The appeals filed by the mortgagees as well as the tenants were dismissed by the first appellate Court holding that the terms and conditions of the mortgage deed were oppressive and harsh, there was clog on equity of redemption and the mortgagor should be freed from that bondage that the tenants had no right to he in possession and were not entitled to the protection of the Bombay Rent Control Act after the redemption of the mortgage. The High Court dismissed the second appeal. Civil Appeal No. 9993 of 1983 is an appeal by the tenant. Civil Appeal No. 397 of l980 is also an appeal by the tenant. In this case the decree holder instituted a regular suit for redemption of the mortgage property. The suit was dismissed. Thereupon the respondent No. l preferred an appeal to the District Judge where the suit was decreed. The defendants filed a second appeal which was dismissed. The decree holder made an application for final decree. The Court while giving the final decree for redemption of the mortgage directed the judgment debtors to hand over the possession of the mortgage property within three months on the decree holder making payment of dues in respect of the mortgage in the court. In pursuance of the final decree the decree holder took out the execution proceedings and PG NO 829 deposited the dues in the Court and claimed possession of the mortgage property from the appellant herein stating that he was a tenant in the possession of the property. Notice was issued to the tenant, who submitted his objection stating that he was a tenant, not to be evicted in the execution of the decree and that he was entitled to get the protection under the Bombay Rent Control Act. The District Judge held that there was no conduct on the part of the decree holder which would stop him from claiming physical possession from the tenant of the mortgagee in possession. The High Court rejected the appeal summarily. Hence the appeal. Civil Appeal No. 1286 of 1981 is also an appeal by the tenant. The appellant is the tenant of the mortgagee inducted in 1955. The property was mortgaged in 1948 for a period of five years. It appears that the tenant was inducted after the period of redemption had expired. The mortgagor had a right to redeem after the expiration of the mortgage. The first appellate court came to the conclusion that the tenants were not protected under the provision of the Bombay Rent Control Act. The appellant preferred this appeal in this Court. On behalf of the appellants it was contended that in the former Kutch District there was a custom to mortgage for a long term of 99 years and when the period was long, naturally the mortgagee would he required to give full authority to repair and reconstruct the mortgaged property with a view to keep pace with new demands of changing pattern, so the condition should not he treated as clog on equity of redemption; (2) that there is no evidence to lead to the conclusion that there was any undue influence; (3) that the provision for the payment towards cost and expenses of repairs and construction did not amount to a clog on the equity of redemption; (4) that on the evidence and the facts the transactions did not amount to clog on the equity of redemption; (5) that in Civil Appeal No. 9993 of 1982 the plaintiff 's were not entitled to recover possession from the appellants, who are tenants in the mortgage properties, since their rights are protected under the Bombay Rents, Hotel and Lodging House Rates Control Act? 1947 as the said Act applies to the area of Kutch in the Bombay State. Therefore, no decree for eviction could he passed against them except in accordance with the provisions of the said Act; (6) that the Trial Court did not make any finding as to when the tenants were inducted, either before or after the rent restriction Act was made applicable to the area of ' Kutch and (7) that the High Court has erred in not following the said legal position entrenched by a line of decisions of this Court with the rights of a tenant inducted by a mortgagee with possession would enure beyond the period of PG NO 830 redemption of the mortgage if his rights are enlarged by subsequent tenancy legislation in force in the area in which the property is situated. Dismissing the Appeals, HELD: 1. The Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. [844E] 2. The rights and liabilities of the mortgagor are controlled by the provisions of section 60 of the . [846F] 3. Any provision inserted to prevent. evade or hamper redemption is void. [846G] 4. The doctrine "clog on the equity of redemption" is a rule of justice, equity and good conscience. It must be adopted in each case to the reality of the situation and the individuality of the transaction [847A] 5. Freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail one s right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not. however, depends upon the facts and the circumstances of each case. [847H; 848A] 6. Whether in the facts and the circumstances of these cases. the morgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. [848D] 7. Courts do not look with favour at any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unJust and unequitable. The principles of English law, as we have noticed from the decisions referred to hereinbefore which have been accepted by this Court in this country, looks with disfavour at clogs On the equity of redemption. Section 60 of the , in India, also recognises the same position. (848D E] 8. It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is PG NO 831 prevented from doing so or is prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clot is inequitable. The law does not countenance it. [848F G] 9. Whether or not in a particular transaction there is a clog on the equity or redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis a vis him and the mortgagee, the economic and social condition in a particular country at a particular point of time, customs if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligation of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage to manage as a matter of prudent management, these factors must be co related to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption. [848H; 849A C] 10. A mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge or some other obligation for which il is given The security must, therefore, be redeemable on the payment or discharge of such debt or obligation. ,any provision to the contrary, notwithstanding, is a clog or fetter on thc equity of redemption and, hence. bad and void. "Once a mortgage must always remain a mortgage", and must not be transformed into a conveyance or deprivation of the right over the property. [849D E] 11 . The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable. fair and just, and unless there is anything to the contrary in the Statute, law must take cognisance of that fact and act accordingly. Ia the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortgage, though not decisive. [850D E] 12. Even apart from section 76(a) of the if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation PG NO 832 of a tenancy beyond the term of ' the mortgage, then only the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor. If the words of the mortgage deed do not clearly and indubitably disclose the intention to allow expressly the creation of a tenancy beyond the terms of the mortgage, the mere fact that the mortgage deed authorises the mortgagee with possession to induct a tenant would not create a tenancy binding on the mortgagor after the redemption of the mortgage. [857E G] 13. In the instant cases the tenancy rights did not come to be enlarged by the Tenancy Legislation after the tenant was put into possession by the mortgagee and the tenancy created in favour of the tenants by the mortgagor did not have the concurrence of the morfgagor so as to claim tenancy rights even after redemption of the mortgage. [866C] Khatubai Nathu Sumra vs Rajgo Mulji Nanji and Ors. , A.I.R. 1979 Gujarat 171; Lalji Purshottam vs Thacker Madhavji Meghaji, 17 Gujarat Law Reporter 497; Maganlal Chhotalal Chhatrappati and Ors. vs Bhalchandra Chhaganlal Shal, 15 Gujarat Law Reporter 193; Soni Motiben vs M/s. Hiralal Lakhasmhi, 22 Gujarat Law Reporter 473; Vadilal Chaganlal Soni and Others vs Gokaldas Mansukh and Other, ; Sarjug Mahto and Others vs Smt. Devruo Devi and Others, A.I.R. 1963 Patna 114; Kunjbiharilal vs Pandit Prag Narayan, A.I.R. 1922 Oudh 283; section V. Venkatarama Reddiar vs Abdul Ghani Rowther & Ors., A.I.R. and Devkinandan and Another etc. vs Roshan Lal and Others, A.I.R. , approved. Santley vs Wilde, [1989] 2 Ch. 474; Vermon vs Betheli, ; and 839; G. and C. Kreglinger vs New Patagonia Meat and Cold Storage Company Ltd., [1914] Appeal Cases 25; All lndia Film Corporation vs Raja Gyan Nath, ; Sachalmal Parasram vs Ratnabai, and Om Prakash Garg vs Ganga Sahai & Ors., , relied on. Seth Ganga Dhar vs Shankar Lal & Ors., and Jadavji Purshottam vs Dhami Navnitbhai Amaratlal & Ors., [1987] 4 SCC 223, distinguished, Aziz Khan vs Duni Chand and Others, A.I.R. 1918 P.C. 48; Jarrah Timber & Wood Paving Corporation vs Samuel, 119031 2 Ch. l; Chhedi Lal vs Babu Nandan, AIR 1944 Allahabad 204; PG NO 833 Bhika and Anr. vs Sheikh Amir and Ors., A.l. R. 1923 Nagpur 60; Mahabir Gope vs Harbans Narain Singh, ; ; Hariher Prasad Singh vs Must. of Munshi Nath Prasad, [1956] S.C.R. l; Asa Ram vs Mst. Kam Kali, ; Dahya Lal vs Rasul Mohammed Abdul Rahim, ; ; Madan Lal vs Bedri Narain and Others, ; Mulla 's , 7th Edition, pages 401 and 402; Rashbehary Ghose 's 'Law of Mortgage ' 6th Edition, pages 227 and 228; Dalal 's Rent Act 4th Edn. page 814 referred to.

ivil Appeal No.4718 of 1990. From the Judgment and Order dated 24.8.1988 of the Punjab and Haryana High Court in C.W.P. No. 7136 of 1985. Dr. Rajeev Dhawan and Arun K. Sinha for the Appellant. K.G. Bhagat, B.S. Malik and Ms. Galshan for the Respondents. The Judgment of the Court was delivered by K.N. SAIKIA, J. Special leave granted. This appeal is from the Judgment and Order dated August 24, 1988 of the Punjab and Haryana High Court dismissing the appellant 's writ petition for quashing the order of the Financial Commissioner Punjab dated 9.2.1988 declaring the second respondent to be eligible for allotment of the lands in dispute under Rule 34C of the Displaced Persons Compensa tion and Rehabilitation Rules 1955 (hereinafter referred to as the rules ') framed under the Displaced Person Compensa tion and Rehabilitation Act, 1954 (hereinafter referred to as 'the Act '). The land in dispute (hereinafter referred to as the land ') bearing Khasra Nos. 17/8/1, 8/2, and 8/4 admeasuring 7 Kanals 4 Marlas in the Revenue Estate of Shanzada Nangal, Gurdaspur, was owned by one Vinod Kumar. The second respond ent claimed to have been in its cultivating possession in the years 1953 54, 1956 57. In 1957 58 and 1958 59 he was recorded as a sub lessee under one Budha Singh lessee on annual rent of Rs.100. In 1958 the lease in favour of Budha Singh was cancelled with information to him by the Rehabili tation Department whereupon the second respondent 's right as sub lessee came to an end. Consequently the second respond ent was no longer recorded as lessee or sub lessee after 1958 59. In 1961 the second respondent applied to the Settlement Authority for allotment of the land under Rule 34C of the rules claiming as a sublessee. His application was rejected by the Managing Officer vide his Order dated 25.11.1962 and the second respondent having not filed any appeal or revi sion therefrom the order became final and binding on him. The Rehabilitation Authorities having decided to dispose of the land an open auction was conducted on 11.8.1967 and the appellant, a retired army Subedar and also a displaced person from West Pakistan offered the highest bid of Rs.9,500 (Rupee nine thousand five hundred) which was ac cepted. The sale certificate was duly issued by 18 the Rehabilitation Department 'to the appellant with effect from September 15, 1969. Without resorting to any appeal against the aforesaid Order dated 25.11.1962 refusing allot ment of the land, the respondent made a second attempt for allotment under Rule 34C of the rules by making another application which too was rejected by the Settlement Officer by order dated July 24, 1969 wherefrom the second respondent moved a revision application before the Chief Settlement Commissioner who remanded the case by Order dated July 29, 1970 to the Managing Officer for fresh decision but the latter rejected that application also on 22.3.1973. The second respondent 's appeal therefrom to the Settlement Commissioner was also rejected by Order dated 13.5.1973 as the second respondent could not prove his continuous culti vating possession as a sub lessee under Budha Singh, from 1.1.1956 till termination of the latter 's lease. The second respondent thereafter instituted a suit on August 22, 1973 in the Court of Subordinate Judge, Gurdaspur against Budha Singh for declaration of his continuous pos session of the land. However, neither the appellant who purchased the land in auction nor the Rehabilitation Depart ment which cancelled Budha Singh 's lease was impleaded. Budha Singh having supported the case, a decree declaring the second respondent to have been in continuous possession was passed. The second respondent this time filed a revision from the appellate order of the Settlement Commissioner dated 13.5.1973 before the Chief Settlement Commissioner who by his Order dated 5.11.1976 remanded the case to the Managing Officer for fresh decision. The Managing Officer vide his order dated 6.1.1978 this time allotted the land to the second respondent under Rule 34C of the rules. The appel lant 's appeal therefrom to the Settlement Commissioner was dismissed vide order dated 6.6.1978 but his revision there from was allowed and the allotment order in favour of second respondent was quashed by the Chief Settlement Commissioner vide his Order dated 11.1.1979. The Chief Settlement Commis sioner declared the appellant to be the auction purchaser and therefore the true owner of the land. The second , respondent 's revision therefrom was also rejected by the Financial Commissioner on 23.10.1979. Thus all the authori ties in the successive rounds found the facts against the second respondent. The second respondent then filed a writ petition challeng ing the Financial Commissioner 's order dated 23.10.1979 and the High Court, contrary to all the aforesaid findings of fact, remanded the case, by 19 its order dated 7.1.83 to the Financial Commissioner for fresh decision in the light of the decree of the civil court dated 17.11.1973, which the High Court at the same time declared to have been a collusive one, obtained by second respondent in collusion with Budha Singh. The Financial Commissioner on remand by the High Court has now held vide Order dated 9.2.1988 that the second respondent is eligible for allotment of the land under Rule 34C of the rules and accordingly allotted the land in his favour quashing the auction sale made in favour of the appellant on 11.8.1967 holding that being a sub lessee in continuous possession since 1.1.1956, the second respondent had a superior claim to allotment of the land and, therefore, the auction sale to the appellant was null and void. The appellant 's writ peti tion challenging that Order having been dismissed in limine by the High Court vide impugned Judgment dated 24.8.1988, he appeals. Rule 34C included in Chapter V of the rules provides: Allotment of agricultural lands of the value of Rs.10,000 or less. Where any land to which this Chapter applies has been leased to a displaced person and such land consists of one or more khasras and is valued at Rs.10,000 or less, the land shall be allotted to the lessee: Provided that where any such land or any part thereof has been sub leased to a displaced person and the sublessee has been in occupation of such land or part there of continuously from the first January 1956 such land or part thereof as the case may be, shall be allotted to such sublessee." Mr. Rajeev Dhawan, the learned counsel for the appel lant, submits, inter alia, that after Budha Singh 's lease was cancelled in 1958. the second respondent 's status as sub lessee ceased and thereafter he was neither a sub lessee nor bid he pay any rent for the land and, in fact, he was a trespasser and not entitled to allotment under Rule 34C of the rules; that his first application was rightly rejected and he having never preferred any appeal or revision there from, the order became final and binding on him, and he was, therefore, not entitled to make the second application. After the land was already sold in auction to the appellant on 1.8.67, counsel submits, the land ceased to be evacuee property and the second respondent 's second application was not maintainable, and the appellant was declared as auction purchaser on 15.8.1969 and the sale certificate issued to him was with effect from 15.9.1969. 20 Mr. K.G. Bhagat, the learned counsel for the respondent, submits that the decision on his first application for allotment was not communicated to him till he made his second application for allotment and that as a sub lessee he had the right to apply for allotment and that his right has now been rightly recognised and the land allotted to him though his second application was also rejected on 24.7. It appears that though the land was sold in auction to the appellant under Rule 34H on 11.8.1967, perhaps because of the pendency of the second application of the second respondent, the appellant was not declared as auction pur chaser during the pendency of that application and only after it was rejected on 24.7.1969, the appellant was de clared purchaser on 15.8.1969. It also appears that after the second respondent 's revision petition against the order rejecting his second application for allotment was remanded by the Chief Settlement Commissioner to the Managing Officer for fresh decision and the latter rejected that application also holding that the second respondent failed to prove his continuous possession of the disputed land as sublessee as required under Rule 34C; and the appeal therefrom was also rejected on 13.5.1973, the Certificate of sale was issued to the appellant on 23.6.1973 with effect from 15.9.1969. Thus, the matter should have finally ended at that stage. The second respondent 's suit against Budha Singh leading to the decree declaring that the second respondent was in continuous possession of the disputed land was, argues Mr. Dhawan, not maintainable and the decree was rightly held to have been collusive, but Mr. Bhagat submits that the High Court was wrong in holding so. Mr. Dhawan 's submission that the sale in favour of the appellant culminating in issue of the sale certificate in his favour had the effect of taking away the land from the pool of evacuee properties and thereafter so long that was not cancelled according to law, it was not open for the Rehabilitation authorities to deal with the same appears to be sound. Rule 34H of the rules reads: "34H. Manner of disposal of land not allotted. Any land to which this Chapter applies which is not allotted under this Chapter, shall be disposed of in the manner provided in Chapter XIV." 21 Chapter XIV of the rules prescribes the procedure for sale of property in the compensation pool. Rule 90 pre scribes the procedure for sale of property by public auc tion. Sub rule 15 of Rule 90 provides for issue of sale certificate and for sending a certified copy of the sale certificate by the Managing Officer to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the property to which the certificate relates is situated. Rule 92 prescribes the procedure for setting aside the sale. In Bishan Paul vs Mothu Ram, reported in AIR 1965 SC 1994, it has been held that Rules 90 and 92 show that there are distinct stages in the auction sale of property in the compensation pool, namely, (1) the fail of the hammer and the declaration of the highest bid, (2) the approval of the highest bid by the Settlement Commissioner or Officer ap pointed by him, (3) payment of the full price after this approval, (4) grant of certificate, and (5) Registration of the certificate. That is the intention behind the rules. The new form of the sale certificate requires a mention that the purchaser had been declared the purchaser of the said property with effect from the certificate date. The title, however, would not be abeyance till the certificate was issued but would be based on the confirmation of the sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate, and title must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The appel lant, therefore, must be held to have obtained title to the land on the date of confirmation of the sale. That is why the Sale Certificate in the instant case was expressly stated to be with effect from 25.9.1969. Rule 92 provides: "92. Procedure for setting aside a sale. (1) Where a person desires that the sale of any property made under rule 90 or 91 should be set aside because of any alleged irregularity or fraud in the conduct of the sale (including in the case of a sale by public auction in the notice of the sale) he may make an application to that effect to the Settlement Commissioner or any officer, authorised by him in this behalf to approve the acceptance of the bid or tender, as the case may be. (2) Every application for setting aside a sale under this rule shall be made 22 (a) where the sale is made by public auction within seven days from the date of the acceptance of the bid; (b) where the sale is made by inviting tenders, within seven days from the date when the tenders were opened. XX XX XX XX XX XX XX XX XX XX Under Sub rule (4), notwithstanding anything contained in Rule 92, the Settlement Commissioner may, of his own motion, set aside any sale under this Chapter if he is satisfied that any material irregularity or fraud which was resulted in a substantial injury to any person has been committed in the conduct of the sale. In the instant case we have not been shown any application for setting aside of the auction sale and the sale certificate in favour of the appellant made according to rules. Nor have we been shown that the Settlement Commissioner of his own motion had set aside the sale being satisfied that any material irregularity or fraud which had resulted in a substantial injury to any person had been committed in the conduct of the sale. Section 14 of the Act provides for constitution of the compensation pool. Section 15 of the Act exempts the proper ty in compensation pool from processes of courts. Section 20 of the Act empowers the Managing Officer or managing corpo ration to transfer any property within the compensation pool (a) by sale of such property to a displaced person or any association of displaced person whether incorporated or not, or to any other person, whether the property sold by public auction or otherwise. Under sub section (2) of that section every Managing Officer or managing corporation selling any immovable property by public auction under sub section (1) shall be deemed to be a Revenue Officer within the meaning of sub section (4) of section 89 of the Indian . Under section 27 of the Act save as otherwise expressly provided in the Act every order made by any officer or authority under the Act, including a managing corporation, shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. The jurisdiction of the Civil Court was therefore barred in the matter of the sale. It is true that where the special tribu nal or authority acts ultra vires or illegally, the Civil Court has by virtue of section 9 of the Civil Procedure Code power to interfere and set matters right. As was laid down by the Judicial Committee of the Privy 23 Council in Secretary of State vs Mask and Co., AIR 1940 PC 105, if the provisions of the Statute have not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Courts have jurisdiction to examine those cases. This rule was reiterated by the Supreme Court in State of Kerala vs M/s. N. Ramaswami Iyer and Sons, AIR 1966 SC 1938. In the instant case the second respondent 's civil suit against Budha Singh for declaration of possession was not against any order passed by any officer under the Act. That decree, even if it was not declared collusive could not have collat erally affected the auction sale order. Mr. Dhawan is, therefore, right in his submission that the appellant, a displaced person, having bona fide pur chased the land in public auction for Rs.9,500 and having paid that amount with the sincere hope of his rehabilita tion, has been subjected to expensive protracted litigation for the last 22 years during which he has earned nothing out of the land while the second respondent had until the im pugned orders, been enjoying the usufruct of the land and this is because of the State not honouring its own final commitment made in the sale certificate in favour of the appellant. Mr. Bhagat answers that the second respondent was in possession, in 1956, and till the cancellation of Budha Singh 's lease in 1958, and thereafter. He was admittedly a sub lessee of Budha Singh till 1958 and then was a sub tenant holding over on the date he applied for allotment in 196 1. The decision rejecting his first application having not been communicated to him he made his second application which was also wrongly rejected by the Chief Settlement Officer; and the Financial Commissioner ultimately on remand from the High Court, on the basis of the second respondent 's possession of the land, rightly set aside the order of the Chief Settlement Commissioner dated 11.1.1979 and allotted the land to the second respondent declaring him to be sub lessee for the period after 1958 setting aside the sale made by the Rehabilitation Department made in favour of the appellant and that the High Court by the impugned Order dated 24.8.88 rightly dismissed the appellant 's writ appli cation in limine. Mr. Bhagat also persuades us to consider that the second respondent, also a displaced person, had been demanding justice for the last 22 years and has finally succeeded in obtaining the allotment and he ought not to be deprived of the same. Sri Dhawan attacks the order of the Financial Commissioner on the ground that he had no material before him other than what was there before his predecessor on 23.10.1979, except the judgment in the civil suit, which for obvious reasons, cannot be taken 24 into account Mr. Dhawan emphasises that, it having been repeatedly held earlier that continuous cultivating posses sion of the second respondent was not proved, there was no basis for the Financial Commissioner in his order dated 9.2. 1988 to have observed that "a favourable presumption regard ing continuity of his possession during the intervening period that is from kharif 1961 to rabi 1964 ought to have been drawn and benefit of doubt given" to the second re spondent, in spite of the absence of Girdawari for the year 1961 62 and 1962 63 and mutilations in the entries of Girda wari for 1963 64. In a sense. , he is no doubt correct but the previous order of 23.10.1979 having been set aside by the High Court, it was open to the Financial Commissioner consider the matter afresh. Doing so, he has found that since the possession of the second respondent from 1953 to 1961 and again in 1964 65 and 1965 66 was borne out from the records, the absence of the records for 1961 62 ad 1962 63 and their illegibility due to mutilation for 1963 64 and 1964 65 should not be held against him and that his continu ous possession since 1962 can be presumed entitling him to an allotment under section 34C. This was a conclusion on facts, which the High Court has declined to interfere with. Thus, we have a peculiar position in this case. While Mr. Dhawan is right in saying that the appellant, as a bona fide purchaser of the land for value at public auction, should be put in the same position in which he would have been had his auction purchase as evidenced by the Sale Certificate been effective from the date of purchase, Mr. Bhagat appears to be justified in saying that it would not be just and proper to deprive the second respondent who was inducted by Budha Singh as a sub lessee and who has contin ued in possession of the land till date, of the fruits of his protracted litigation culminating in allotment of the land to him. The difficulty in the present case has arisen because the State confirmed the sale in favour of the appel lant in 1969 and issued a sale certificate to him in 1973 without waiting for the final outcome of the second respond ent 's revision application to the Chief Settlement Commis sioner and further proceedings consequent thereon. The odd situation, creating equities in favour of both the parties, that has thus resulted in the present case is due to the fault of the appellant or the second respondent. It could have been avoided if the State had held over the auction until the second respondent 's application had been finally disposed of or had held the auction subject to the result of the application. It is true that the second respondent could have taken steps to challenge the auction in favour of the appellant but, perhaps misguidedly, he was concentrating on getting an allotment under section 34C for which he cannot be 25 wholly blamed. Whatever that may be, the final position is that both parties have had to suffer and indulge in lengthy litigation . Under the above circumstances we feel that while this Court is to administer justice according to law there may be scope for doing justice and equity between the parties. In such a situation we remember what the Institute of Justin ian, De Justitia Et Jure, in 'Liber Primus ' Tit. I said: "Justice est constans et perpetua voluntas jus suum cuique tribuendi. " Justice is the constant and perpetual wish to render every one his due. "Jurisprudentia est divinarum atgue humanarum rerum notitia, justi atgue injusti scientia." Jurisprudence is the knowledge of the things divine and human; the science of the just and the unjust. The divine is that which right reason commends. The human is a|so in the contents of the law. As Max Rumelin said, in the Struggle to govern Law, "Justice is rivaled by equity. " The dilemma that equity is to be better than justice and yet not quite opposed to justice, but rather a kind of justice has troubled us. Gustav Radbruch clarifies the mutual relation between two kinds of justice, namely, commutative and dis tributive. We may call "just" either the application or observance of law, or that law itself. "The former kind of justice, especially the justice of the Judge true to the law," according to him, "might better be called righteous ness. " Here "we are concerned not with justice which is measured by positive law, but rather with that by which positive law is measured. " Justice in this sense means equality. Aristotle 's doctrine of justice or equality is called by him commutative justice which requires at least two persons while distribute justice requires at least three. Relative equality in treating different persons while granting relief according to need, or reward and punishment according to merit and guilt is the essence of distributive justice. While in commutative justice the two persons con front each other as co equals. three or more persons are necessary in distributive justice in which one, who imposes burdens upon or grants advantages to the others, is superior to them. "Therefore, it presupposes an act of distributive justice which has granted to those concerned, equality of rights, equal capacity to act, equal status." (The Legal Philosophies of Lask, Radbruch and Dabin P. 74) According to Radbruch, "distributive justice is the prototype of justice. In it we have found the idea of justice, toward which the concept of law must be oriented. " Law offers and protects and conditions necessary for the life of man and his perfection. In the words of Cardozo, "What we are seek ing is not merely the justice that one receives when his rights and status are determined by the law as it is, what we are seeking is 1 justice to which law in its making should 26 conform. " The sense of justice will be stable when it is firmly guided by the 'pragma ' of objective and subjective interests. In the instant case the Financial Commissioner is a party. What we find in the instant case is that the Rehabil itation authorities acting under the Act and the Rules decided the competing claims of the appellant as well as the second respondent as to the land. If the Rehabilitation authorities can provide an equal extent of land with equal benefits to both the parties justice, may appear to be done but that being uncertain, the availability of land being limited, this Court can only look towards equity for solu tion. Considering the facts of the instant case including the extent of the land and the purposes of the Act and the Rules, and the reality that the land must have become scarce and much more valuable now than in 1967, we feel that the ends of justice on the facts of the present case require that the impugned Orders be set aside and the land be caused to be divided by the Financial Commissioner into two equal halves and one half be given possession of to the appellant by dint of his auction purchase and the other half be allot ted and given possession of to the second respondent under Rule 34C of the rules. We order accordingly. We direct the Financial Commissioner or the Chief Settlement Commissioner, after notice to the appellant and the second respondent, to divide the land forthwith into two qual halves and deliver possession of the appellant 's moiety to him. They should carry out the above directions within three months from the date of receipt of this order. The parties shall cooperate in carrying out of the directions and we hope that they will be able to live in peace thereafter. The appeal is disposed of accordingly. Under the facts and the circumstances of the case, we make no order as to costs. A copy of the Judgment may be forwarded forthwith to the Financial Commissioner. S.B. Appeal allowed.

The appellant, a retired army subedar and also a dis placed person from west Pakistan purchased the Land in public auction conducted by The Rehabilitation Department, by offering the highest bid of Rs.9,500. The laud in dispute measured 7 Kanals & 4 Marlas and was owned by one Vinod Kumar. Having paid the purchase money with the sincere hope of his rehabilitation, he had to be in protracted litigation for 22 years during which he earned nothing out of the land because the State did not honour its final commitment made in the sale certificate in favour of the appellant. The State confirmed the sale in favour of the appellant in 1969 but issued sale certificate on 23 June, 1973 being effective from September 15, 1969 without waiting for the final out come of the second respondent 's revision application to the Chief Settlement Commissioner, and further consequent pro ceedings thereon. It was submitted by the second respondent that the said land was in his cultivatory possession since 1956 and as per public records he was sub lessee under Budha Singh Lessee, and the Lease in favour of Budha Singh was cancelled in 1958 by the Rehabilitation Department and thereafter he became a sub tenant holding over on the date he applied for allotment in 1961, under Rule 34C of the Rules. The decision rejecting his first application was not communicated to him. So he made his second application which was rejected by The Chief Settlement Officer vide his order dated July 24th, 1969. Then he moved a revision application before the Chief Set tlement Commissioner who remanded the case to the Managing Officer for fresh decision by his order dated July 29, 1970. The second respondent 's second application was rejected on March 22, 1973. The second appeal to the Settlement Commis sioner was also rejected on May 13, 1973 as he could not prove his continuous cultivator) possession as a sub lessee under Budha Singh from January 1956 till the termination of the latter 's lease. Thereafter second 15 respondent instituted a suit against Budha Singh for decla ration of his continuous possession of the land and got a decree in his favour as being in continuous possession of the land. The second respondent again filed a revision against the appellate order of the Settlement Commissioner, which was remanded to the Managing officer and he got land allotted under Rule 34C of the Rules vide order dated January 6th, 1978. The appellant 's appeal therefrom was dismissed by the Settlement Commissioner, but in his revision application therefrom, the allotment order in favour of the second respondent was quashed by the Chief Settlement Commissioner vide his order dated January 1, 1979 declaring the appellant to be the auction purchaser and therefore the true owner of the Land. The second respondent 's revision was rejected by the Financial Commissioner on Oct. 23, 1979. Thus all au thorities in the successive rounds found the facts against the second respondent. Therefore, the second respondent filed a writ petition challenging the Financial Commissioner 's order in the High Court. High Court remanded the case to the Financial Commis sioner for fresh decision on January 7, 1983. The Financial Commissioner vide his order February 2, 1988 held that the second respondent was eligible for allotment of land under rule 34C of the rules, holding that being a sub lessee in continuous possession since January 1, 1956, and thereafter he had a superior claim to the allotment of the land and quashed the auction sale made in favour of the appellant on August 11, 1967. The Financial Commissioner found that since 1953 to 1961 the second respondent was in possession of the land and again in 1964 65, 65 66 the records also bore out this fact. The absence of records for 1961 62, 62 63 due to their illegibility due to mutilation should not be held against him and his continuous possession since 1962 can be presumed entitling him to an allotment under Rule 34 C of the Rules. This was a conclusion on facts which the High Court declined to interfere with and dismissed the appellant 's writ peti tion in limine on August 24, 1988. Allowing the Appeal, the Court, HELD: In the instant case, the appellant as a bone fide purchaser of the disputed land for value at public auction under Rule 34H of the rules on August 11, 1967 should have been put in the same position which he would have been, had his auction purchase as evidenced by the 16 Sale Certificate been effective from the date of purchase. Rule 90 of the Rules prescribes the procedure for sale of property by public auction. Sub rule 15 of Rule 90 provides for issue of sale certificate and Rule 92 prescribes the procedure for setting aside the sale. but once the sale certificate was issued in favour of the appellant, he became the true owner and it had the effect of taking away the land from pool of evacuee properties and thereafter so long that was not cancelled according to law, it was not open to the Rehabilitation Department to deal with the sale. The diffi culty in the present case has arisen because the State confirmed the sale in favour of the appellant in 1969, whereas it issued sale certificate to him on June 23,1973 with effect from September 15, 1969 without waiting for the final outcome of the second respondent 's revision applica tion to the Chief Settlement Commissioner & further proceed ings thereafter. Thus the odd situation resulted in creating equities favour of both the parties with no fault of the appellant or the second respondent. If the State had held over the auction until the second respondent 's application had been finally disposed of or had held the auction subject to the result of the application, the second respondent could have challenged the auction in favour of the appellant but perhaps misguidedly he was concentrating on getting an allotment under section 34C. So both the parties had to suffer and indulge in lengthy protracted litigation for 22 years. Had the Rehabilitation authorities acting under the Act and the Rules decided the competing claims of the appel lant as well as the second respondent as to the disputed land and provided an equal extent of land with equal bene fits to both the parties justice may appear to be done but that being uncertain the availability of land being limited. the court can only look towards equity for solution. The dilemma that equity is to be better than justice and yet not quite opposed to justice but rather a kind of justice and the distinction between commutative justice and distributive justice discussed. [24E; F I I; 23G H; 26B; 25C] Passages from justinian, gustav Radbrach, Aristotle and Cardozo referred to. Considering the facts, the extent of land and the pur poses of the Act and the Rules and the reality that land must have become scarce and much more expensive than in 1967 to meet the ends of justice on the basis of facts, the Court directed that the disputed land be divided by the Financial Commissioner into two equal halves and one half and one half be given possession of to the appellant by dint of his being auction purchaser and the other half be allotted and given possession of to the second respondent under Rule 34C of the Rules. This order be carried out accordingly within three months. [26C D] 17

minal Appeal. No.97 of 1968. Appeal by special leave from the judgment and order dated April 24, 1967 of the Bombay High Court in Criminal Appeal No. 317 of 1967. R. M. Hazarnavis, K. L. Hathi and P. C. Kapoor, for the appellant. M. section K. Sastri and section P. Nayar, for the respondent, The Judgment of the Court was delivered by Hidayatullah C.J. This is an appeal by Narayan Nathu Naik who was tried by the Sessions Judge, Thana for the murder of one Rattan on the night following 18th March, 1966 at about midnight. He was convicted by the Sessions Judge under section 302. 134 of the Indian Penal code and sentenced to imprisonment for .life. His appeal to the High Court was summarily dismissed .although the High Court recorded a brief note of the arguments which were raised before it and the replies to those arguments repelling them. It is contended in this case that the appellant was entitled to at least one appeal and that his first appeal should have been properly considered in the High Court and the judgment of the High Court,, which according to the .learned counsel, reads like a dialogue between the court and counsel, is no judgment at all. It appears that special leave was probably granted in this case, because of the unsatisfactory manner in which reasons were recorded. The High Court need .not have recorded reasons if it was satisfied that the case was ,one for dismissal but if it thought that it had to go into the . evidence and to discus it, the proper course would have been to set the case down for a proper hearing and to give a con sidered judgment in the case. We have considered this case on the evidence brought against the appellant and we are satisfied that the appeal must fail. We give our reasons briefly. There is some evidence that the appellant Narayan Nathu Naik and the deceased Rattan had some quarrel over property. This, it is contended, was somewhat old and not very serious and that nothing untoward had happened, for the appellant to .have suddenly embarked upon the murder of rattan. We need not consider the question of motive in this case if we are ,satisfied that the evidence that Narayan Nathu Naik was the assailant of Rattan, is acceptable. The Medical evidence showed that Rattan died of a single injury which was a stab wound through the heart. The left ventricle was cut and the heart was drained of all blood. The pericardium had also a tear but on its upper reach and the evidence of the doctor who performed the autopsy shows that the pericardium was full of blood. The clothes of the deceased were also profusely stained but no blood was found inside the house where the deceased was first sleeping, but some blood was found at the Ota where the dead body was found but the source of the blood could not be identified. From this the learned counsel raised the contention that the scene of offence was probably not what the prosecution case described and his contention is wound up with the rest of the story given by the eye witnesses particularly the wife who named the appellant as one of the assailants. Therefore we must turn to that story. On the day in question, the deceased Rattan had gone to make some purchases. At night he had not returned when the family took their meals and lay down to sleep. In the house at that time were Rattan 's mother, Rattan 's wife and Rattan 's 135 'brother. There were three students who had .,come to this house and were staying to appear at the S.S.L.C. examination. The family distributed themselves as follows. Inside the house Rattan 's wife lay down on the ground on a bed with her infant child. The bed for Rattan was made on a swing nearby. A lantern was burning and the door of the house was open. Rattan returned at about 10 P.M. in the night. As food had been taken by the rest of the family, a portion was set apart for Rattan. According to his wife, Vimalabai, he took his meals without waking her up and after he had washed his hands, he threw some water on her face which woke her up. He then lay down on the swing to sleep. Vimalabai says that she also lay down to sleep and presumably she must have slept, because she says that she was woken up in the middle of the night by shouts from her husband. Vimalabai 's evidence is that when she woke up, she found that her husband was in the grip of the appellant Narayan Nathu Naik at the door near the ota. Rattan 's brother Kamlakar who had also been awakened by the shouts of the deceased also arrived there, but the appellant had stabbed Rattan. Kamlakar caught hold of the appellant from behind around his waist, but when Rattan fell on the ground the appellant broke loose and ran away. On their shouting and wailing, Jairam the uncle of Rattan (P.W.1.) and two other brothers of Rattan came on the scene. They were living at a distance of about 1 1/2 furlongs from the house of Rattan. Rattan is said to have spoken to his mother before he died that it was Narayan Nathu Naik who had attacked him. The evidence is that it was Narayan Nathu Naik and this is brone out by the statements of Kamlakar (P.W.3), Manibai (P.W.4) and Vimlabai (P.W.5). The two students who were also witnesses in the case made a state ment before the police involving Narayan Nathu Naik, but they later changed in the court and were declared hostile and cross examined. We shall refer hereafter to their testimony in so far as they have admitted facts in support of the prosecution case. The story therefore is of an attack in the middle of the .night upon Rattan by the appellant at the door of his hut. The incident is said to have been witnessed by three persons whom we have mentioned and who are close relations of the deceased. The argument is that the evidence of these witnesses should not be accepted because of their interest in Rattan and also because of certain contradictions in their testimony. Apart from the fact that the High Court and the Court of Session have accepted their testimony and this Court does not go into evidence for the third time, we have read the evidence 136 of these witnesses and we have thoroughly checked it and we are satisfied that what has been stated by these witnesses is the true version of what happened on that fateful night. The story is a simple one, of an attack in the middle of the night by an ,assailant who was not only grappled with but was seen and identified in the light. The witnesses who have resiled have also stated that die occurrence took place at the door of the cottage. They have also stated that there was sufficient light for them to see although they changed that they did not see the assailant nor heard what the victim stated to his mother about the appellant having assaulted him. This version comes from the witnesses who no doubt are interested, but they are not interested enough to let the real assailant escape and charge someone else. Report of this case was made almost immediately and in fact the police arrived within a couple of hours and the state ments were recorded the very next morning. There was no time available to concoct a false case with such details against the appellant. It was argued that the first information report was not pro perly recorded in the prescribed form but was writen down on a piece of paper and it was copied into the register for first information reports. At first it was suggested that the first information report in the printed form was not produced in the case, but we find that it was so produced and that the Sub Inspector stated that he had copied it from a plain paper. In our experience, we have seen several first information reports recorded on plain pieces of paper and then transcribed into the first information report register. In fact if a written report is brought, it is verbatim copied into the first information report register. There is no doubt that this was the first version of the incident given out by P.W. 1 Jairam when he went to the police station house to report about the occurrence. There was no time to bring a false case against the appellant and to let the real assailant escape. On the whole, we are satisfied that the evidence of the eye witnesses is believable. The witnesses who resiled were the two students who were present at the house for the purpose of appearing at an examination. They have answered a number of questions which clearly corroborate the evidence of the other witnesses. For example, P.W. 7 Chintaman Gangaram Kulkarni stated that the light of some lamp was coming outside the door of the house and that when Kamlakar caught hold of the assailant Rattan fell down on the ground near the door of the Ota. He also stated that Rattan 's mother went inside the house, brought water, tried to give water to Rattan, but he did not drink. He also stated 137 that after hearing the cries,, Rattan 's uncles, his sister and her husband came there. He admitted that Kamlakar told his uncle what had happened, he did not hear it. He admited that it was true also that thereafter one of the uncles of the deceased Rattan. went to the police station to make a report. The other witness (P.W. 10) also stated quite clearly that at about 3 or 4 A.M. the police came to the, house and that his statement and those of two companions were recorded by the police at 7 A.M. the next morning. He also admited that they all woke up when they heard the cry in the middle of the night and that Rattan 's, wife had also awakened and she had stood in the door of the house. He admitted that the light was burning in the house and the door of the house was open and that the light of the lamp. had spread over the ota of the house through the open door. He also admitted that Rattan 's mother brought water from the house and poured in into the mouth of Rattan but he did not drink and all the inmates were crying aloud with the result that Rattan 's uncle Jairam, his two brothers, Rattan 's sister and her husband came there immediately after the crime. Jairam made enquiries with Kamalakar and Naibai how it had happened and that Kamlakar told something to Jairam but he said that he did not hear it. All this corroborates the evidence of the, three eye witnesses except as to the identity of the appellant. We accept the evidence of the eye witnesses. The medical evidence was used to challenge the scene of offence on the ground that there were no blood marks found, but, in our opinion, the man might bleed internally after receiving, stab wound in the heart. The witnesses have stated that Rattan was stabbed on the spot where the body was found after the occurrence took place. Blood was in fact found at the spot but the source of the blood could not be ascertained There is no, reason to think that it was blood of some animal. On the whole we are satisfied that this case was proved satisfactorily. The appeal. therefore, fails and is dismissed. Y.P. Appeal dismissed '.

The first information report in a murder case was written on a piece of paper, and was copied into the register for first information reports. The Sessions Judge convicted the appellant on the evidence, even though the first information report was not recorded in the prescribed form. His appeal to the High Court was summarily dismissed although the High Court recorded a brief note of the arguments which were raised before it and the replies to those arguments repelling them. Dismissing the appeal, this Court HELD : The High Court need not have recorded reasons if it was satisfied that the case was one for dismissal but if it thought that it had to go into the evidence and had to discuss it, the proper course would have been to set the case down for a proper bearing and to give a considered judgment in the case. The first information report was properly written. Several first information reports are recorded on plain pieces of paper and then transcribed into the first information report register. In fact if a written report is brought, it is verbatim copied into the first information report register. In this case there was no time to bring a false case against the appellant and to let the real assailant escape. [134 C; 135 E F] On the evidence, the appellant was rightly convicted.

ivil Appeal No. 4756 of 1989. From the Judgment and Order dated 6.9.1985 of the Madhya Pradesh High Court in Civil Misc. Petition No. 465 of 1984. S.K. Agnihotri for the Appellant. S.K. Gambhir for the Respondent. The Judgment of the Court was delivered by K.N. SINGH, J. Special leave granted. This appeal is directed against the order of the High Court of Madhya Pradesh, Jabalpur, Gwalior Bench dated 6.9.1985 quashing the State Government 's order dated 21.8.1984 pre maturely retiring the respondent from service. The respondent was holding the post of Deputy Director of Geology and Mining in the State of Madhya Pradesh. The State Government constituted a committee for screening the service roll of its employees for considering the question of compulsory retirement on attaining the age of 35 years. The Screening Committee which 250 included Shri S.S. Dave, Director of Geology and Mining Department of the Government of Madhya Pradesh, on examining the service records of the respondent made recommendation to the Government for his pre mature retirement. Pursuant to the Screening Committee 's recommendation the State Govern ment by its order dated 21.8.1984 retired the respondent compulsorily from service under Rule 56 of the Fundamental Rules. The respondent challenged the validity of the State Government 's order by means of a writ petition under Article 226 of the Constitution before the High Court (Gwalior Bench). The High Court quashed the State Government 's order on the finding that the participation of Shri S.S. Dave in the deliberation of the Screening Committee vitiated its recommendation and also consequently order of the State Government on the doctrine of bias. The High Court further held that since Shri S.S. Dave had on an earlier occasion awarded adverse remarks against the respondent he was biased in law and therefore he was disqualified to be a member of the Screening Committee and his participation in the Screen ing Committee rendered his recommendation invalid. The High Court placed reliance on the decision of this Court in A.K. Kraipak & Ors. etc. vs Union of India, After hearing learned counsel for the parties at length we are of the opinion that this appeal must succeed. The object and purpose of Fundamental Rule 56 conferring power on the Government to prematurely terminate the service of a Government servant is to ensure efficiency in the adminis tration by weeding out dead wood officials who may have outlived their utility as observed by this Court in J.N. Sinha vs Union of India, [1971] 1 SCR 791. While exercising this power the State Government constituted a high powered Committee consisting of senior officials of the State Gov ernment and S.S. Dave being the Head of Department of Geolo gy and Mining was a member of the Screening Committee. As Head of Department he was the best person to assess the efficiency and utility of employees working in the Depart ment of Geology and Mining. His presence in the Committee was necessary to have a fair and correct assessment of the work and conduct of the employees of that Department for the purposes of making recommendations to the Government. While it is true that as Head of Department he had awarded adverse remarks to the respondent on an earlier occasion but that does not mean that he had any malice against the respondent, in fact no malice had been pleaded by the respondent against S.S. Dave. As Head of Department Dave had performed his duty in recording his opinion in the respondent 's character roll as no other person was entitled under the rules to adjudge his work and 251 conduct. No doubt bias and malice both vitiate decision of an authority. But by no stretch of imagination Dave could be held to have been biased against the respondent merely because on an earlier occasion he had in the performance of his duties awarded an adverse remark to the respondent. The High Court committed serious error in holding that malice in law was writ large on the face of the proceedings of the Screening Committee, although no malice in fact had been pleaded against him. In coming to that conclusion the High Court placed reliance of Kraipak 's case. As a member of the Screening Committee Shri Dave was performing duty as signed to him under the rules and Government order for screening records of the officers. He had no personal inter est in the matter and there was no conflict between his personal interest and his duties as member of the Screening Committee, therefore there could not be any question of bias or malice in law. In Kraipak 's case an officer who was himself a candidate for selection was a member of the selec tion committee and selection was held to be vitiated on the ground that there was a conflict between that officer 's personal interest and his duties as he was judge of his own cause. The principles laid down in Kraipak 's case do not apply to the facts of the instant case. We are therefore of the opinion that Dave 's presence in the Screening Committee did not vitiate the recommendation made by the Committee in any manner, consequently the State Government 's order could not be quashed. The High Court had no valid reason to hold that the Screening Committee was not properly constituted and that its recommendations were unconstitutional. We accordingly allow the appeal, set aside the order of the High Court, and dismiss the respondent 's writ petition but we make no order as to costs. Although we have upheld the State Government 's order but we would like to observe that since the respondent had been reinstated in service after the High Court order and he has now retired from service on attaining the age of superannua tion, the State Government should not take any steps for reducing his pension by treating him to have retired with effect from 21.8.1984. P.S.S. Appeal allowed.

The respondent was sought to be retired compulsorily from service by an order dated August 21, 1984 on attaining the age of 55 years under Rule 56 of the Fundamental Rules, pursuant to the Screening Committee 's recommendation. He challenged the said order in a writ petition under Article 226 of the Constitution. The High Court quashed the said order on the finding that the participation of the Head of the Department in the deliberation of the Screening Committee had vitiated its recommendation, and order of the State Government on the doctrine of bias, since he had on an earlier occasion award ed adverse remarks against the respondent. Allowing the appeal by special leave, the Court, HELD: 1. 'The presence of Head of Department in the Screening Committee did not vitiate its recommendation. Consequently the State Government 's order could not be quashed. [251E] 2.1 The object and purpose of Fundamental Rules 56 conferring power on the Government to prematurely terminate the service of a Government servant is to ensure efficiency in the administration by weeding out dead wood who may have outlived their utility. In the instant case, while exercis ing this power the State Government had constituted a high powered Screening Committee consisting of senior officials of the State Government and the Head of the Department. [250D F] 2.2 The Head of Department bad performed his duty in recording _ opinion in the respondent 's character roll as no other person was entitled under the rules to adjudge re spondent 's work and conduct. As 249 a member of the Screening Committee he was performing duty assigned to him under the rules and Government order for screening records of the officers. He was the best person to assess the efficiency and utility of employees working in his department. He had no personal interest in the matter and there was no conflict between his personal interest and his duties as member of the Screening Committee. Therefore, there could not be any question of bias or malice in law. [250H, 251C, 250F] J.N. Sinha vs Union of India, [1971] 1 SCR 791, referred to. A.K. Kraipak & Ors. vs Union of India, , distinguished. Since the respondent had been reinstated in service after the High Court order and he has now retired from service on attaining the age of superannuation, the State Government should not take any steps for reducing his pen sion by treating him to have retired with effect from August 21, 1984, [251F G]

:Civil Appeal No. 599 of 1975. (Appeal by special leave from the judgment and order dated the 23 4,1974 of the Madhya Pradesh High Court at Jabalpur in MiSC. Petition No. 542 of 1971. section V. Natu, D. K. Kambarkar and V. N. Ganpule, for the appellant. Ram Panjwani and H. section Parihar, for the respondent. 101 The Judgment of the Court was delivered by FAZAL ALI, J. This is an appeal by special leave against the judgment and order of the Madhya Pradesh High Court dated April 23, 1974 dismissing the writ petition filed by the appellant before the High Court for quashing the order of the Assessing Authorities imposing tax under the on the basis of a number of sales made by the appellant Company in pursuance of multifarious contracts of sale. The appellant Company was formed in pursuance of an agreement dated June 8, 1962 between the President of India and the Central Provinces Manganese ore Company Limited. Before this agreement the said Company which will be hereafter referred to as the 'C.P.M.O.C. ' was a private company incorporated in the United Kingdom and carried on the business of extracting manganese ore from several mines in the erstwhile States of C.P. & Berar and Bombay. By virtue of the agreement referred to above a new Company was formed under which the Government of India, the Government of Maharashtra and the Government of Madhya Pradesh held shares in the ratio of 17% each whereas the original Company C.P.M.o. C. retained shares to the extent of 49%. Thus the position was that in the present commercial venture the Central Government had preponderance of share. The appellant, after the formation of the new Company, was known as Manganese ore (India) Ltd. which will hereafter be referred to as the M.O.I.L. Fresh leases. to extract the minerals from the various mines were issued by the Government in favour of the M.O.I.L. and the Company entered into contracts with buyers in India and outside for selling the manganese ore extracted from the various mines situated in the States of Madhya Pradesh and Maharashtra. A close analysis of the contracts entered into by the appellant Company and the business carried on by it would manifestly reveal that the contracts may be divided into four separate and clear categories. Category I are the contracts by which the manganese ore extracted by the appellant company is sent directly to a foreign company known r as M/s. Philips Brothers on f.o.b. terms. Another such contract was entered into by the appellant with B.I.S.C.(Ore) Ltd., London for sale of oriental manganese ore f.o.b. Visakhapatnam. Copies of these contracts were filed before the High Court as Annexures Q & R. The Regional Assistant Sales Tax Commissioner accepted the contention ,. Of the appellant that so far as the sales under these contracts were concerned, they occasioned export and were clearly exempt from the as they fell within the purview of section 5(1) of the said Act. We might also mention here that the main dispute between the parties is regarding the applicability of sections 3(a), 4(2) (b) and 9 of the , according to which the State of Madhya Pradesh was competent to levy tax on the sales made by the appellant in the course of which the manganese ore moved from the State of Madhya Pradesh to other States in India. The main contention of the appellant before the High Court as also before the Sales Tax Authorities was that all these sales were outside sales and not in the course of 102 inter State trade or commerce and therefore the provisions of the Central Sales Tax Aat did not apply. The Assistant Sales Tax Commissioner negatived the contention of the appellant and hence a writ petition was filed before the High Court. We might also mention that the writ petition was filed by the appellant company before the High Court even before taking recourse to the normal procedure laid down under the Madhya Pradesh General Sales Tax Act, 1958. This was obviously done because the appellant chose to assail the levy of tax on the ground that the Sales Tax Authorities did not possess any jurisdiction to impose the tax inasmuch as the sales were not at all covered by the . We have stressed this fact particularly because before the High Court the appellant raised some questions relating to the merits of the matter which could be properly agitated before an Appellate or Revisional authorities under the Madhya Pradesh General Sales Tax Act. Thus so far as the sales in Category I are t. concerned, the Assistant Sales Tax Commissioner accepted the plea of the appellant and did not levy any tax on those sales. These sales, therefore, did not form the subject matter of the present appeal before us. This position was conceded by both sides. Category II represents contracts which were entered into by the appellant company with the Minerals and Metals Trading Corporation of India Ltd. hereinafter referred to as MMTC under which the appellant despatched manganese ore of varying percentage to the MMTC f.o.b. Bombay. After having received the goods from the appellant the MMTC exported the goods to foreign buyers. The copies of the contracts comprising these sales are Annexures N, O and P, before the High Court. Category III relates to sales as per agreements copies of which are Annexures S, T and U by which the appellant sold to M/s Ram Bahadur Thakur & Company, Bombay and other buyers which in turn sold the goods to the MMTC. As regards these two categories, Category II and Category III, the appellant advanced two fold contentions before us. In the first place it was argued that as the goods were eventually exported by the buyers from India to foreign countries, therefore, the sales made by the appellant were not inter State sales but sales which occasioned exports and, therefore, fell within section 5(1) of the . The High Court after consideration of various aspects of the matter overruled the contention of the appellant and held that as no export was involved so far as the sales made by the appellant to the buyers in India were concerned, therefore, section 5(1) had no application at all. This matter need not detain us further, because it is no longer res integra and is now completely concluded by a Constitution Bench decision of this Court in Md. Serajuddin and others vs State of Orissa(1) where Ray, C.J., speaking for the majority observed as follows: "To establish export a person exporting and a person importing are necessary elements and the course of export is (1) 103 between them. Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two for then there are two sales one to the intermediary and the other to the importer. The first sale is not in the course of export because the export commences with the intermediary. The tests are that there must be a single sale which itself causes the export or is in the progress or process of export. There is no room for two or more sales in the course of export. x x x x x The expression "occasions" in Section S of the Act means the immediate and direct cause. But for the contract between the corporation and the foreign buyer, there was no occasion for export. Therefore, the export was occasioned by the contract of sale between the Corporation and the foreign buyer and not by the contract of sale between the Corporation and the appellant." The Court clearly held that where the sale was not directly and substantially connected with export, and where between the seller and ultimate buyers intermediaries were involved, such a sale would not occasion any export and would not fall within the purview of section 5(1) of the . It is not disputed that all the sales covered by Category II and Category III were actually made by the appellant not to any foreign exporter but to buyers inside India whether it was MMTC or whether they were other private firms. In these circumstances, therefore, the sales mentioned above could not be said to be sales which occasioned any export. The High Court, therefor, rightly found that these sales were completed within the territory of India when the goods passed to the buyers. The High Court further found as follows: "For these reasons, it cannot be held that these sales occasioned the export within Section 5(1) of the and were sales in the course of export. " The High court relied on a number of authorities, but in view of the decision of this Court in Md. Serajuddin 's (supra) case it is not necessary for us to consider those authorities at all, because the matter has now been concluded by a decision of this Court. In fact this position was conceded by Mr. Natu appearing for the appellant but he tried to persuade us to refer the case to a larger Bench for reconsidering Md. Serajuddin 's (supra) case. We are, however, unable to agree with the prayer made by the learned counsel for the appellant because this Court has given its decision recently and the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extra ordinary or special reasons to do so. We are unable to find any special reasons for reconsidering Md. Serajuddin 's case (supra), particularly when this Court has laid down the rule, namely, that where the sale is in fact and in law a pure inter State sale, it cannot be treated to be a sale occasioning export. This, therefore, disposes of the first plank of attack made by the appellant 8 390SCI/76 104 on the judgment of the Madhya Pradesh High Court so far the sales contained in Categories II and III are concerned. Category IV is in respect of contracts of sale, copies of which are Annexures 1 to 7 before the, High Court. These sales were admittedly made by the appellant in favour of the buyers within the territory of India but outside the State. It was, however, contended that as the goods purported to have been sold to the buyers did not in fact move from the State of Madhya Pradesh, therefore, there was no inter State sale, but only an inside sale in the State where the goods were delivered, and therefore the State of Madhya Pradesh had no jurisdiction to levy tax under the . The same arguments were applied to Categories II and III on the ground that if the sales comprised in Categories II and III were not sales in the course of export they also were not inter State sales, because the goods which moved from the State of Madhya Pradesh were not actually the goods which were sought to be sold to the buyers in other States in India. The High Court has considered this matter at great length and has relied on a number of authorities. In a recent judgment of this Court in Balabhgas Hulaschand and ors. vs State of orissa(1), after review of all the authorities on the point, this Court held as follows: "That the following conditions must be satisfied before a sale can be said to take place in the course of inter State trade or commerce: (1) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another; (ii) that in pursuance of the said contract the goods in fact moved from one State to another; and (iii)that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move. If these conditions are satisfied then By virtue of section 9 of the it is the State from which the goods move which will be competent to levy the tax under the provisions of the . " On a careful consideration of the facts and circumstances of the present case we are satisfied that the present case is directly covered by the decision of this Court in Balabhgas Hulaschand 's case(1). The learned counsel for the appellant sought to distinguish Balabhgas Hulaschand 's case(1) on the ground that what was despatched from Madhya Pradesh was merely managanese ore of a particular percentage but that was not the property which was sought to be purchased by the buyers in other States. It was contended that under the (1) ; 105 contracts or sale the property which was to be sold was continental A mixture which consisted of various kinds of rocks or manganese ore which were mixed together. What therefore was actually despatched, according to counsel for the appellant, was merely one of the constituents of the goods purported to be sold and not the goods which were ores purchased by the buyers. The High Court in its well reasoned judgment has fully considered this aspect of the matter and has rightly pointed out that there is no mechanical or scientific process by which the continental mixture is made. According to the appellant itself the mixture comes into existence automatically by piling up manganese ore despatched from various States one after the other. In other words, the position is that suppose 1000 tons of manganese ore is sent from Madhya Pradesh and another thousand tons from various mines from Maharashtra, when these ores are stocked at one place by being piled up one upon another they automatically produce continental mixture with various constituents properties and percentages required. Mr. B. Sen appearing for the respondent submitted that what was I actually sold was manganese ore of an average percentage and it was not right to say that actually one of the constituents of the manganese ore was despatched by the appellant from various mines situated in the State of Madhya Pradesh. In fact, manganese ore like iron or coal is a special type of commodity which is not capable of undergoing any scientific process of mixing up resulting in an end product. We find ourselves in complete agreement with the argument of the learned counsel for the respondent. It seems to us that the word 'oriental mixture ' which has no doubt been used in some of the agreements produced by the appellant is a misnomer, because this is merely a technical terminology or just another name for what is known in the commercial world as manganese ore of an average or standard percentage of about 49%. A careful perusal of the agreements would clearly show that what the buyers wanted and what was actually sold to them was manganese ore and after all the goods were stocked together the required percentage under the contracts of sale automatically came into existence. For instance, the relevant provisions of one of the contracts, which has been quoted by the High Court, runs thus "QUALITY: The average quality of the ore to be supplied by sellers should be, without guarantee, 49.25% Manganese, 0.15% Phosphorus, 9% Silica and 7.5% Iron PROVIDED ALWAYS that as such supplies are furnished by mixtures of ores from the sellers ' several mines the aver age quality of the samples taken from deliveries from. each mine shall from the basis of settlement. " It would be seen that what was to be supplied was only manganese ore of the percentage of 49.25%. Properties like Phosphorus, Silica and Iron are inherent constituents of manganese ore and are bound to. be found in every manganese ore. Similarly in another contract 106 which appears at p. 117 of the Paper Book and which was entered into by the appellant with the MMTC the relevant passage runs thus: "The execution of this Sale Agreement is dependent on the sellers being able to rail the ores from the mines to the port for shipment and also of the grant of any necessary export permit. QUALITY: 30,000 (Thirty thousand tonnes(1) of 1000 kgs. each, 5% more or less at Buyers ' option. SPECIFICATIONS: Mn. basis 48 % rejection below 46% Fe. 10% maximum Silica+Alumina 14% maximum Phos. 0.18 % maximum" Here also it would appear that the agreement is only for sale of manganese ore. Although a certain percentage is mentioned but that percentage is derived automatically when the manganese ores are stocked together. In most of the other contracts which have been filed by the appellants, for instance, in another contract which has been entered into between the appellant and the MMTC on February 22, 1968 what is sold is 'oriental grade manganese ore '. Similarly in another contract between the appellant and Ms Ram Bahadur Thakur & Company dated February 28, 1968 the property sold is about 25,000 Metric Tonnes of oriental Mixture of Manganese ore. In another contract which appears at p. 147 of the Paper Book and which is between the appellant and the Universal Ferro & Allied Chemicals Ltd., Tumsar Road, what is sold is 12,000 metric tonnes of Manganese ore. There was another stipulation as to delivery in respect of this contract as follows: "The sellers will load the component ores from their mines into the wagons which will be arranged for by the buyers who shall be the consignors, in the name of the sellers, who shall be the consignors, at such mines ' sidings and for such quantities as may be declared from time to time by the sellers ' Managing Director, the destination of all the ,, wagons being Tumsar in the State of Maharashtra and the railway freight being payable by the buyers at the destination. As aforesaid, after the loading of the component ores into wagons the buyers shall be responsible in all respects in respect of the goods so loaded into the wagons. " The stipulation in this contract that after loading the component ores into the wagons the buyers shall be responsible in respect of the goods 107 is a clear pointer to the fact that the manganese ores that were loaded into the wagons were undoubtedly the goods which were purported to be sold under the contract of sale, otherwise the buyers would not have taken the responsibility for the ores loaded into the wagons if it was really not the ores which the appellant were to supply but merely a constituent thereof. A close perusal of the various contracts of sale entered into by the appellant would, therefore, clearly disclose that it was manganese ore and manganese ore alone which was sought to be sold by the appellant to various buyers in India. The mere fact that certain specifications have been given or certain percentages have been mentioned does not change the character or the quality of the goods that are actually supplied by the appellant to its various purchasers. Another important feature of the contract of sale is that a certain amount of tonnage of manganese ore is to be supplied by the appellant which is stretched over a period of few months which shows that the appellant was to supply the ore in instalments. In these circumstances, therefore, the theory of the ore supplied by the appellant being only one constituent and not the entire goods sold appears to be purely illusory and is not at all supported even by the contracts of sale filed by the appellant. For instance, if a firm placed an order for 1000 bales of cloth to be supplied to it by the seller in the course of five months and in pursuance of this contract if the seller supplies 200 bales every month it cannot be said that the first instalment of 200 bales is not the goods sold but only a constituent of the same. On a parity of reasoning, therefore, the manganese ores loaded by the appellant in the railway wagons in the State of Madhya Pradesh, are clearly included in the contract of sale which itself provides that the supply has to be made within. a specified period of few months. Learned counsel for the appellant placed great reliance on a judgment of the Bombay High Court, a certified copy of which has been filed in this Court in the Central Provinces Manganese ore Company Ltd. vs The State of Maharashtra(1). In the first place this judgment is not at all applicable to the facts of the present case, because the Bombay High Court was not dealing with a sale under the . The High Court was pre eminently concerned with the provisions of the C.P. and Berar Sales Tax Act, 1947 and there is nothing to show that the provisions of that Act were in pari materia to the provisions of the . More than this, we do not want to say about the judgment of the Bombay High Court. Reliance was also placed by the appellant on a decision of this Court in Commissioner of Sales Tax, Eastern Division, Nagpur vs Husenali Adamji and Company & Another(2) which also does not appear to be applicable to the facts of the present case, because the Supreme Court in that case was dealing with the question as to when the title in the goods passes. (1) Sales Tax Reference Nos. 17, 18, 19 and 20 of 1964 decided on April 7, 1969. (2) 10 S.T.C. 297. 108 Lastly it was contended by counsel for the appellant that as the manganese ores despatched by the appellant were unascertained or future goods which would come into existence only after the manganese ores extracted in various mines in Madhya Pradesh and Maharashtra were stocked and piled up one after the other the provisions of section 3(a) of the would not apply. This contention is completely without substance in view of the decision of this Court in Balabhgas Hulaschand 's case, (supra) where it was pointed out that so far as section 3(a) of the is concerned there is no distinction between unascertained and future goods and goods which are already in existence, if at the time when the sale takes place these goods have come into actual physical existence. In the instant case also it was never disputed before the High Court or before us that the manganese ore was loaded into the wagons after being extracted from the mines and that the sales of these manganese ores despatched from Madhya Pradesh to various States actually took place and the goods were ultimately accepted by the buyers in other States. In these circumstances, therefore, it is quite clear in this case that the movement of the goods took place in pursuance of the contracts of sale which ultimately merged into actual sales and it was only there after that the tax was sought to be levied by the State of Madhya Pradesh. It was also not disputed that the tax has been levied only on such sales of the manganese ore despatched from the State of Madhya Pradesh which came from the mines situated in the State of Madhya Pradesh. Thus all the incidents of an inter State sale are pre sent in the instant case and the view taken by the High Court that the sales were covered by section 3(a) of the is absolutely correct and we fully endorse the same. These were the main arguments advanced before us by counsel for the appellant. Apart from these, some small points were also argued by the learned for the appellant. In the first place it was submitted that the Sales Tax Authorities had no jurisdiction to impose a penalty of Rs. 1,000/ for the delay in filing the return under the , because there was no provision in the Central Act making a dealer liable to pay penalty for filing belated returns and recourse could not be taken to the provisions of the State Act on the subject. The High Court negatived this plea following two Division Bench judgments of the Madhya Pradesh High Court. The view taken by the High Court on this point is legally erroneous be cause this Court in M/s. Khemka & Co. (Agencies) Pvt. Ltd. vs State of Maharashtra(1) has pointed out that in the absence of any provision for penalty under the itself it is not open to the Sales Tax Authorities to press into service the provisions of the State Sales Tax Act. In this connection, this Court observed as follows . "It is only tax as well as penalty payable by a dealer under the Central Act which can be assessed, re assessed, collected and enforced in regard to payment. The words (1) ; 109 as if the tax or penalty payable by such a dealer under the A Central Act is a tax or penalty payable under the general sales tax law of the State" have "origin and root in the words" payment of tax including any penalty payable by dealer under the Central Act". x x x x x x For the foregoing reasons we are of opinion that the provisions in the State Act imposing penalty for non payment of income tax within the prescribed time is not attract ed to impose penalty on dealers under the Central Act in respect of tax and penalty payable under the Central Act. x x x x x The Central Act contains specific provisions for penalty. Those are the only provisions for penalty available against the dealers under the Central Act. Each State Sales Tax Act contains provisions for penalties. These provisions in some cases are also for failure to submit return or failure to register. It is rightly said that those provisions cannot apply to dealers under the Central Act because the Central Act makes similar provisions. In this view of the matter, therefore, this part of the order of the High Court must be set aside and the penalty imposed by the Assist ant Sales Tax Commissioner must be quashed. It was then submitted that a purchase tax on a turnover of Rs. 748/ has been levied under section 7(1) of the Madhya Pradesh General Sales Tax Act. It was, however, pointed out by the respondent that the tax was actually lev ed on the purchases made by the appellant from unregistered dealers and is a very petty amount. In view of this concession, learned counsel for the appellant did not press this matter. The finding of the High Court on this point is, therefore, affirmed. F Lastly it was submitted that the Assistant Sales Tax Commissioner was wrong in holding that the turnover in respect of inter State sales was not supported by 'C ' Forms. This is also a matter which relates to the merits of the case which could be properly agitated before the Appellate or Revisional authorities under the State Sales Tax Act. The result is that the penalty of Rs. 1000/ imposed by the Assist ant Sales Tax Commissioner is quashed. All other contentions raised by the appellant fail and the judgment of the High Court on those points is hereby affirmed. The appeal is accordingly dismissed with the modification indicated above, but in the circumstances without any order as to costs.

The appellant Manganese ore (India) Ltd. (a commercial venture where the Government of India, Government of Maharashtra and Government of Madhya Pradesh hold shares in the ratio of 17 per cent each) entered into four types of "contracts of sale" with buyers in India and outside India for selling the manganese ores extracted from the mineral mines leased out to it and situated li in the States of Madhya Pradesh and Maharashtra. They were (a) category I are the contracts where the appellant directly sent the ores to two foreign companies on f.o.b. terms; (b) category II represents contracts which were entered into by the appellant with tho Mineral and Metals Trading Corporation of India Ltd., under which the appellant despatched manganese ore of varying percentage to the M.M.T.C., f.o.b. Bombay and the M.M.T.C. in turn exported the goods to foreign buyers; (c) category III relates to the sales to M/s. Ram Bahadur Thakur & Co., Bombay and other buyers who in their turn sold the goods to M.M.T.C. for export; and (d) category IV relates to the sales in favour of the buyers within the territories of India, but outside the State. According to section 3(a) ant 9 of the , the State of Madhya Pradesh was competent to levy tax on the sales in the course of inter state trade or commerce. Under section 5(1) of the , sales occasioning export or in the course of export are exempt from the purview of the Act. In respect of categories II to IV, the Sales Tax Authorities levied tax under the Central Act, holding that they were in the course of inter State trade or commerce and imposed a penalty of Rs. 1,000/ under the Madhya Pradesh General Sales Tax Act for belated filing of returns. The writ petition filed by the assessee in the Madhya Pradesh High Court failed. Dismissing the appeal by special leave and quashing the penalty imposed, the Court. ^ HELD: As no export was involved so far as the buyers in India are concerned, section 5(1) of the has no application at all. This 100 point is no longer "res integra" in view of the Constitution Bench division of this Court in Md. Serajuddin and others vs State of Orissa, Where the sale Y/as not directly and substantively connected with export, and where between the seller and ultimate buyers intermediaries are involved, such a sale would not occasion any export and would not fall within the purview of section 5(1) of the . [102 G, 103 C D] Md. Serajuddin & others vs State of Orissa, , applied. (2) The doctrine of "Stare Decisis" is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so, and more so to reconsider a recent constitutional decision. [103 G] (3) Before a sale can be said to take place in the course of inter state trade or commerce, the following conditions must be satisfied: (1) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another. (ii) that in pursuance of the said contract the goods in fact moved from one State to another. and (iii) that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move. If these conditions are satisfied, then by virtue of section 9 of the Act, it is the State from which the goods move which will be competent to levy the tax under the provisions of the Act. [104 D F] Balabhgas Hulsachand and others vs Stare of Orissa, ; relied on. (4) So far as section 3(a) of the is concerned, there is no distinction between unascertained and future goods and goods which are already in existence, at he time when the sale takes place these goods have come into actual physical existence. [108 Bl Balabhgas Hulsachand and others vs State of Orissa, ; applied. (5) In the absence of any provision for penalty under the itself it is not open to the Sales Tax Authorities to press into the service the provisions of the State Sales Tax. [108 G] (6) In the instant case, a careful perusal of the agreements would clearly show that what the buyers wanted and what was actually sold to them was manganese are and after all the goods were stocked together, the required percentage under the contracts of sale automatically come into existence. The word "oriental mixture" is merely a technical terminology or just another name for what is known in the commercial world as manganese ore. therefore, It is clear that it was manganese ore and manganese ore alone which was sought to be sold by the appellant to various buyers in India. The mere fact that certain specific contracts have been mentioned does not alter the character and quality of the goods that are actually supplied by the appellant to its various purchasers. In these circumstances, therefore, the theory of the ore supplied by the appellant being only one constituent and not the entire goods sold is illusory. [105 D F, 107 B D] Central Provinces Manganese ore Co., Ltd. vs The State of Maharashtra, S.T. Ref. 17 20/1964 decided on 7 4 1969 by Bombay High Court, Commissioner of Sales Tax, Eastern Division Nagpur vs Hussenali Adamji and company and another, 10 S.T.C. 297, (Distinguished).

Special Leave Petition (Civil) No. 6735 of 1983. From the Judgment and Order dated the 14th April, 1983 of the Bombay High Court in Notice of Motion No. 859 of 1982 in Appeal No. 295 of 1982. R. K. Garg, U. R. Lalit, R. V. Mehta and B. P. Maheshwari, with them for the Petitioners. Dr. Y. section Chitale, Raju Ramchandran and D. C. Singhania for the Respondents. The order of the Court was delivered by CHINAPPA REDDY, J. Asharam M. Jain sought special leave of this Court under article 136 of the Constitution to appeal against the order of the High Court of Maharashtra in Notice of Motion No. 859 of 1982. The petition for special leave to appeal ran to 84 pages at the foot of the petition, it was stated "drawn and filed by B. P. Maheshwari & Co., Advocates for the petitioner". Asharam M. Jain filed an affidavit along with the special leave petition affirming that the statement of facts in paragraphs 1 to 67 in the petition for special leave to appeal were true to his knowledge and belief and based on the record of the lower court. In several paragraphs of the special leave petition, Asharam M. Jain indulged in wild and vicious diatribe against the then Chief Justice of the High Court of Maharashtra. To illustrate the limits of the invective, we wish to refer to but one paragraph of the petition, In paragraph 26 of the petition, it was stated by Asharam M. Jain: "The petitioner says that having found that they would no longer be justified in continuing to hear the Notice of Motion and appeal for the several true facts set out in the Transfer Application and the affidavits made by the petitioner and briefly hereinabove set about the learned 721 Chief Justice tried by the said order to harm the petitioner as much as he could and made totally false and wrong observations quite unworthy of the head of the judiciary of the State of Maharashtra, and His Lordship, Mr. Justice Pendse supported the learned Chief Justice The said Order, it is clear, has been made with the sole and dishonest object of causing prejudice in the minds of the Judges of the new Bench against the petitioner and depriving the Judges of the new Bench of their right to independently judicially decide the Notice of Motion on merits, and which is proved by subsequent events. " When the special leave petition was heard on April 27, 1983 by this Court, the outrageous allegations made against the Chief Justice and the other learned Judge of the High Court of Maharashtra were noticed and two of us (A. P. Sen and E. section Venkataramiah, JJ) made the following order: "The special leave petition is dismissed. Our attention is drawn to paragraphs 6, 10, 11, 13, 16, 19, 20, 26, 27, 28 30, 31, 34, 38, 39, 42, 50, 57, 60, 62 and grounds 5(v), (x), 7 to 10, (z), (mm), (tt), (uu) of the special leave petition. The learned Judges have also in the course of the order made reference to the conduct of the petitioner in casting aspersions on the former Chief Justice. Issue notice for contempt to the petitioner why he should not be committed for contempt under the ". In answer to the notice issued to Asharam M. Jain, he appeared before the court on July 25, 1983 when the following order was made: "Shri Garg, appears along with the contemner. He prays for two weeks ' time to file an affidavit and states on instruction that his client is not prepared to withdraw the allegations but wants to make amends. He is allowed two weeks ' time to file an affidavit. "Issue notice to the Attorney General for India requesting him to appear ann assist the court in the case. The Registry shall furnish a copy of the special leave 722 petition and the show cause notice to the learned Attorney General. "The matter be listed on August 22, 1983. The contemner shall remain present in the court on that date". When the matter was taken up for hearing on August 22, 1982, Shri R. K. Garg placed before us an affidavit, said to contain the sincere and unconditional apology of Asharam M. Jain and stated that the contemner was placing himself at the mercy of the court. He submitted that the court should be so gracious as to accept the unqualified apology tendered by the contemner and refrain from sending the contemner to prison. He invited our attention to In Re: Shri section Mulgaonkar(1) where Krishna Iyer, J. suggested that `a normative guideline for the judges to observe in this jurisdiction ' was "not to be hypersensitive where distortions and criticism overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude". There is never any risk of judicial hypersensitivity. The very nature of the judicial function makes judges sympathetic and responsive. Their very training blesses them with `insensitivity ', as opposed to hypersensitivity. Judges are always seeking good reasons to explain wrong conduct. They know there are always two sides to a coin. They neither give nor take offence because they deal with persons and situations impersonally, though with understanding. Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation. But, as elsewhere, lines have to be drawn. The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to protected. We had occasion to point this out in Advocate General Bihar vs M. P. Khair Industries,(2) where we said: "But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses 723 and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. "It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage." "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. " So we approach the question not from the point of view of the judge whose honour and dignity require to be vindicated, but from the point of view of the public who have entrusted to us the task of due administration of justice. Having given our utmost consideration, we have come to the conclusion that it is not open to us to accept the easy and ready solution suggested by Mr. R. K. Garg of accepting the apology and imposing a fine. We think that a contumacious disregard of all decencies, such as, that exhibited by the contemner in this case can only lead to a serious disturbance of the system of administration of justice, unless duly repaired atones by inflicting an appropriate punishment on the contemner which must be to send him to jail to atone for his misconduct and thereafter to come out of prison a chastened but a better citizen. We accordingly sentence him to suffer simple imprisonment for a period of two months. Before we part with the case, we must express our sense of shock at a sad revelation made by Shri R. K. Garg during the course of the hearing. When we expressed our surprise and disgust that the special leave petition should have been drawn and settled by advocates of this Court, he told us that special leave petitions are 724 often filed over the names of counsel, who receive the papers from counsel outside Delhi and file them in the Registry of the Court as if drawn and settled by them, though they may have never even looked into the papers. This is hardly proper and surely discourteous to the Court. We hope this is not a common practice. H.L.C. Petition dismissed.

In a petition for special leave to appeal filed by him, the petitioner indulged in wild and vicious diatribe against the Chief Justice of the High Court who had passed the order sought to be appealed from. In answer to the notice issued to him under the he prayed for two weeks ' time to file an affidavit (which was granted) and stated that he was not prepared to withdraw the allegations but desired to make amends. When the matter came up again, his counsel placed before the Court an affidavit said to contain the sincere and unconditional apology of the petitioner and pleaded that the Court should accept it and refrain from sending him to prison. Council, relying on In re: Shri section Mulgaonkar; , suggested that "a normative guideline for the judges to observe in this jurisdiction" was not to be hypersensitive where distortions and criticism overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude". Rejecting the plea and sentencing the contemner to suffer simple imprisonment for a period of two months. ^ HELD: There is never any risk of judicial hypersensitivity. The very nature of the judicial function makes judges sympathetic and responsive. Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation. But, as elsewhere, lines have to be drawn. The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected. The question has to be approached not from the point of view of the judge whose honour and dignity require to be vindicated, but from the point of view of the public who have entrusted to judges the task of due administration of justice. A contumacious disregard of all decencies, such as that exhibited by the contemner in this case can only lead to a serious disturbance of the system of administration of justice, unless duly repaired at once by inflicting an appropriate punishment on the 720 contemner which must be to send him to jail to atone for his misconduct and thereafter to come out of prison a chastened but a better citizen. [722 D G; 723E G] Advocate General of Bihar vs M. P. Khair Industries, ; , referred to.

Appeal No. 381 of 1970. Appeal from the judgment and order dated December 22, 1969 of the Delhi High Court in Civil Writ No. 746 of 1969. Niren De, Attorney General and section P. Nayar, for the appellant. Sardar Bahadur, Vishnu Bahadur, and Yougindra Khushalani, for respondent No. 1. G. section Chatterjee, for respondent No. 2. Hegde, J. 'In this appeal by certificate the only question that was canvassed before us was as regards the validity of the order contained in memorandum No. F. 16 42/68 S 1, dated August 13, 1969 issued by the Government of India, Ministry of Education and Youth Services, retiring the 1st respondent compulsorily from government service in exercise of the powers conferred under cl. (j) of Fundamental Rule 56 with effect from August 14 1969. That order was attacked before the High Court on various grounds. The High Court rejected some of those grounds. It did not find it necessary to decide ' a few others but accepting the contention of the respondent that in making the order, the appellant had violated the principles of natural justice, it held that the impugned order is invalid The High Court accordingly issued a writ of certiorari quashing that order. Before us the only contention presented for our decision was whether the High Court was right in holding that in making the impugned order the appellant had violated the principles of natural justice. No other contention was taken before us. Hence we shall address ourselves only to that question. 793 Before proceeding to examine the contention above formulated it is necessary to set out the material facts. The 1st respondent. herein Col. J. N. Sinha successfully competed in the examination held by the Federal Service Commission in 1938 for the post of Extra Assistant Superintendent in the Survey of India Service. After selection, he was appointed as an Extra Assistant Superintendent. He worked as probationer for a period of three years and thereafter he was confirmed in that post in 1941. During the second world war, he Volunteered for active service in the army and was granted an emergency Commission in the army. He was granted a regular commission in the army with effect from October 23, 1942. In exercise of the powers conferred by the proviso to article 309 of the Constitution, the President of India made on August 17, 1950 rules called the Survey of India (Recruitment from Corps of Engineering Officers) Rules, 1950 for regulating the recruitment and conditions of service of persons appointed from the Corps of Engineering Officers of the Defence Ministry to the Survey of ' India Class I Service. Rule 2 of the said Rules provides for the recruitment of Military Officers to the Survey of India Class I Service and Rule 3 provides that the recruited officers will be on probation for two years which may be extended by the Government on the advice of the Surveyor General. The 1st respondent was taken into the Survey of India Class I Service under Rule 2 of the aforesaid 1950 Rules as Deputy Superintendent Surveyor with effect from June 1951. Thereafter the President of India in .exercise of the powers under the proviso to article 309, made on July 1, 1960 the Survey of India Class I (Recruitment) Rules, 1960 for regulating the recruitment of Survey of India Class I Service. The 1st respondent was subsequently promoted firstly as Superintending Surveyor and then as Deputy Director. After sometime he was promoted as Director and lastly as Director (Selection Grade). The last mentioned promotion was made with effect from October 27, 1966. On May 17, 1969, Fundamental Rule 56(j) was amended. Thereafter on August 13, 1969, the Ministry of Education and Youth Services issued the impugned order. The 1st respondent was given three months pay and allowances in lieu of three months notice prescribed in Fundamental Rule 56(1). The 1st respondent being aggrieved by that order, challenged the validity of the same. As mentioned earlier, the High Court accepted his plea. The Union of India has appealed against that order. Fundamental Rule 56(j) reads "Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right 794 to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice (i) if he is in Class I or Class II Service or post the age limit for the purpose of direct recruitment to which is below 35 years, after he has attained the age of 50 years. (ii) In any other case after he has attained the age of 5 5 years. Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July, 1966 and to a Government servant referred to in clause (f ) . " The order impugned merely says that in pursuance of cl. 5 6 ,the President was, pleased to decide that in public interest the 1st respondent should retire from government service with effect from August 13, 1969 and that he would be given three months pay and allowances in lieu of three months notice provided in the said rule. No reasons are given for compulsorily retiring the 1st respondent. Admittedly no opportunity was given to him to show cause against his compulsory retirement. The failure on ' the part of the concerned authority to give an opportunity to the 1st respondent to show cause against his compulsory retirement was held by the High Court to have amounted to a contravention of the principles of natural justice. The validity of Fundamental Rule 56(j) was not questioned before the High Court nor before us. Its validity is not open to question in view of the decision of this Court in T. G. Shivacharana Singh and Ors. vs State of Mysore(1). Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the, concerned government servant 'to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in article 310 of the Constitution. But this "Pleasure" doctrine is subject to the rules or law made under article 309 as well as to the conditions prescribed under article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and Ors. vs Union of ' India(2) "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it. " It (1) A. I. R. (2) A. I. R. 795 is true that if a statutory provision can be read consistently with the principles of natural justice. the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of naural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred / and the effect of the exercise of that power. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule. ' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent 's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in article 3 1 0 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be 796 that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months ' notice is provided so as to enable him to find out other suitable employment. In our opinion the high Court erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the government servant because of his past service. It cannot be said that if the retiring age of all or a section of the government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniform retirement age for all government servants. The retirement age is fixed not merely on the basis of the interest of the government servant but also depending on the requirements of the society. The High Court was not justified in seeking support for its conclusion from the decision of this Court in State of Orissa vs Dr. (Miss) Binapani 'Dei and ors.(1) and A. K. Krailpak vs Union of India( '). In Binapani Dei 's case( ') Dr. Binapani Dei 's date of birth was refixed by the government without giving her proper opportunity to show that the enquiry officer 's report was not correct. It is under those circumstances this Court held that the order refixing the date of birth was vitiated for failure to comply with the principles of natural justice. Therein the impugned order took away some of the existing rights of the petitioner. In Krapak 's case( '), a committee consisting of Chief Conservator of, Forest, Kashmir and others was appointed to recommend names of the officers from Kashmir Forest Service for (1) ; (2) A.I.R. 1970 S.C. 150. 797 being selected for the Indian, Forest Service. The Chief Conservator of Forests, Kashmir was one of the candidates for selection. Further it was established therein that some of the officers who competed with him had earlier challenged his seniority and consequently his right to be the Chief Conservator and that dispute was pending. Under those circumstances this Court held that there was contravention of the principles of natural justice. For the reasons mentioned above, we are unable to agree with the conclusion reached by the High Court that the impugned order is invalid. We accordingly allow this appeal, set aside the judgment and decree of the High Court and dismiss the writ petition. In the circumstances of the case we make no order as to costs. [The Court by order dated November 18, 1970 and January 19, 1971 on an application for review filed by the respondent vacated its order dismissing the writ petition. Instead, the proceedings were remanded to the High Court for decision on such points as were not, dealt with and decided in the judgment of that court. Ed.] G.C. Appeal allowed. Proceedings remanded.

The first respondent joined the post of Extra Assistant Superintendent in the Survey of India Service in 1938. Later he was taken into the Class I Service of the Survey of India and rose to the post of Deputy Director. He also officiated as Director. On August 13, 1969 the President of India pleased by an order under Rule 56(j) of the Funda mental Rules to compulsorily retire the first respondent from Government service. No reasons were given in the order. The appellant challenged the order by a writ petition in the High Court. The failure on the part of the concerned authority to give opportunity to the first respondent to show cause against his compulsory retirement was held by the High Court to have amounted to a contravention of the principles of natural justice. Against the judgment of the High Court the Union of India appealed. HELD : Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kralpak 's case these rules can operate only in areas not covered by any law validly made. If a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But on the other hand a statutory provision either specifically 'or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read with the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of the power. [794 G 795 C] Fundamental Rule 56(i) does not in terms require that any opportunity should be given to the concerned Government servant to show cause against his compulsory requirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The respondent had not challenged the impugned order on any of these grounds. [795 D F] Compulsory retirement does not involve any civil consequence. A person retired under Rule 56(i) does not lose any of the rights acquired 792 by him before retirement. The rule is not intended for taking any penal action against government servants. It merely embodies one of the facets of the pleasure doctrine embodied in article 310 of the Constitution. The rule holds the balance between the, rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Three months notice is provided to enable the retired employee to find out other suitable employment. [795 G 796 B] On the above view of the law, namely, that no notice to show cause was required, the appeal must be allowed. T. G. Shivacharana Singh vs State of Mysore, A.I.R. 1965 S.C. 280. Kraipak and Ors. vs Union of India, A.I.R. 1970, S.C. 150, State of Orissa vs Dr. (Miss) Binapani Dei and Ors., ; distinguished.

Appeal No. 266 of 1969. Appeal by special leave from the judgment and order dated August 16, 1967 of the Kerala High Court in Income tax Referred Case No. 44 of 1966. C. K. Viswanatha Iyer and K. Jayaram, for the appellant. V. A. Seyid Muhammad and A. G. Pudissery, for the respon dent. The Judgment of the Court was delivered by Hegde, J. The appellant, Venugopala Varma Rajah is the present Rajah of the Vengunad Swaroopan in Palghat District, Kerala State. He is the Karnavan of his Tarwad. He will be hereinafter referred to as the assessee. The predecessor of the appellant, as the then Kamavan of the family, submitted the return for the assessment year 1959 60 under the Kerala Agricultural Income tax Act (which will hereinafter be referred to as the Act) showing a gross income of Rs. 1,21,912/ and a net income of Rs. 84,065/60 P. That 'represented the income from the properties held by him under the family Karar dated May 29, 1909. Agricultural Income tax Officer overruling the objection of the assessee included in the income returned, the income of the properties which had been put in possession of the junior members of the family under the aforementioned Karar of 1909. The net income so computed was Rs. 2,32,957/ and a tax of Rs. 1,30,672/35 P. was imposed. In appeal the Appellate Authority excluded from the taxable income the income of the properties allotted to the "Rani Group" but sustained the addition of the income of the properties allotted for the enjoyment of the male members. Aggrieved by the order of the Appellate Authority, the assessee took up the matter in second appeal to the Appellate Tribunal of the Agricultural Income tax. The Tribunal rejected the contention of the assessee and dismissed the appeal. Thereafter at the instance of the assessee, it stated a case under section 60(1) of the Act and submitted to the High Court for its opinion three questions of law namely L119SupCI/72 1002 "(1) Whether the findings of the Tribunal that the family karar of 1909 does not constitute a diversion of family income to the various allottees thereunder is correct ? (2) Whether the findings of the Tribunal that the provisions of sub section (1) of sec. 9 of the Act are applicable only to cases of diversion of income and not otherwise is correct ? (3) Whether the findings of the Tribunal that the provisions of sub sec. (1) of sec. 9 of the Act are not applicable to the facts of this case are correct ? Questions Nos. 2 and 3, in our opinion, do not bring out the import of sec. 9 (1) correctly but it is not necessary to go into that aspect as our decision covers the real point in issue. The Reference originally came up for hearing before a Division Bench but as the questions arising for decision were considered to be of importance, the same was referred to a Fun Bench of three judges. The High Court by its judgment dated August 16, 1967 answered Question Nos. 1 and 2 against the assessee. It did not answer the third question as it was of the view that answer to that question was unnecessary in view of its findings on Questions Nos. 1 and 2. Thereafter this appeal was brought by certificate. The assessee in this case is the H.U.F. of which the appellant was the Kamavan at the relevant time. The question for decision is whether the income of the properties put in possession of the male members under the Karar of 1909 continues to be the, income of the family. At present we are not concerned with the income of the properties put in possession of the "Rani Group" in view of the decision of the Appellate Authority which had not began appealed against. If the income in dispute continues to be the income of the family then the revenue is justified in bringing the same to tax under the provisions of the Act. On the other hand if that income has ceased to be the income of the family, then the same cannot be brought to tax in the hands of the assessee. Therefore, the sole question is whether that income is the income of the family ? Section 9 of the Act provides "9(1) In computing the total agricultural income of an assessee all agricultural income arising to any person by virtue of a settlement or disposition, whether revocable or not, and whether effected before or after 1003 the commencement of this Act, from asset remaining the property of the settlor or disponer shall be deemed to be the agricultural income of the settlor or disponer and all agricultural income arising to any person by virtue of a revocable transfer of asset shall be deemed to be the agricultural income of the transferor Provided that for the purpose of this sub section a settlement, disposition or transfer shall be deemed to be revocable if it contains any provision for the transfer directly or indirectly of the agricultural income or asset to the settlor, disponer or transferor or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over the agricultural income or assets : Provided further that the expression settlement, disposition shall, for the purposes of the sub section include any disposition trust, covenant, agreement or. arrangement and the expression "settlor or disponer" in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made Provided also that this sub section shall not apply to any agricultural income arising to any person by virtue of a settlement or dispo sition which is not revocable for a period exceeding six years or during the life time of the person and from which agricultural income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be, assessed on the said agricultural income as and when the power to revoke arises to him. " A Hindu Undivided Family is a person within the, meaning of s.2(m) of the Act. We shall now proceed to examine the nature of the Karar entered into in 1909. The family of the assessee appears to have been one of the premier land holding families in Malabar. It appears to have had agricultural properties in various places. To the Karar in question all the then living members ( 12 in number) of the family were parties. The properties mentioned in 'A ' Sch. to the Karar were set apart for the maintenance, education and other expenses of the female and male members residing in Kalari Kovilagom which is otherwise known as "Rani Group". Under the Karar, Karnavan of the Tarwad was to perform the marriage ceremonies of the female members of the Tarwad in accordance with the prevailing conditions and to meet 1004 the expenses thereof. All other expenses of female, and male members residing in Kalari are to be met from the income of the 'A ' Sch. properties. The members residing in the Kalari have no right to alienate or encumber the properties allotted to them and all government revenue due in respect of those properties should be paid by them. Party No. 2, the second senior most member in the family was to be given 7,000 paras of paddy annually for his maintenance and for this purpose paddy lands yielding 3,500 paras of paddy shown in 'B ' Sch. were made over to his possession and Party No. 1, Karnavan of the Tarwad was directed to give to Party No. 2 from Malayalam era 1085 onwards 3,500 paras of paddy. Further the Karnavan was directed that he should redeem "Karukakode Challa Nilam" and make over the same to Party No. 2, but after making over the same to Party No. 2, be was not to pay 3,500 paras of paddy referred to earlier. " C" Sch. properties yielding an income of 4,750 paras of paddy were allotted for the enjoyment of Party No. 3. He was required to maintain himself from out of their income. Properties shown in 'D ' Sch. were set apart for the mainte nance of Party No. 4. The land revenue of B, C and D Sch. properties was required to be paid by the Karnavan of the tarwad. On the death of Party No. 2 or on his becoming Karnavan of the family, Party No. 3 was to take over the properties allotted for the maintenance of Party No. 2 and Party No. 4 was to take over the properties for the maintenance of Party No. 3. The Karar prohibited the persons who were in possession of the properties allotted for their enjoyment from alienating or encumbering those properties, and if in contravention of those terms, they alienated any of those properties, the Karnavan was entitled to resume the properties treating the alienation as void. Clause 18 of the Karar prohibited the parties in possession of the properties from cutting and selling the kuzhikoors or dismantling the buildings in the properties in their possession. Clause 19 of the Karar prohibited the parties from enhancing the munpattom amounts due to the tenant. Clause 6 of the Karar provided that all the male members living in the Kalari, on completing the age of 21 should leave the Kalari and thereafter the Kamavan should make arrangements for their maintenance. Karar does not stipulate what arrangement he should make for their maintenance. Therefore it follows that he may maintain them either in the Tarwad house or give them maintenance allowance either in the shape of paddy or cash. It may also be noted that the Karar does not provide as to what would happen if the number of members in the Tarwad substantially increases. One other thing that has got to 1005 be noted is that the Karar is silent as to what would happen to the properties shown in Schs. B, C and D after Parties Nos. 2, 3 and 4 die, all of whom, we were told have died. Hence Kamavan can take possession of them on behalf of the family after their death. On an examination of the various clauses in the Karar, it is obvious that the joint status of the parties was not disrupted. The arrangement made in the Karar was only an arrangement for providing maintenance. No party was given any absolute right in any portion of the family properties. The properties mentioned in the Karar continued to be the properties of the family. The arrangement made under the Karar cannot even be considered as a permanent arrangement. The properties were not divided on the basis of Thavazies. The liability to maintain the male members, aged more than 21 years excepting Parties Nos. 2, 3 and 4 continued to be that of the Karnavan. The Karar also does not provide for devolution of the properties allotted to Parties 2 to 4. Hence those properties must necessarily go back to the possession of the Karnavan after those Members die. We have earlier seen that the responsibility of performing the marriage ceremonies of the female members continued to be that of the Karnavan. He is also responsible for the payment of land revenue in respect of the family properties excepting properties included in Sch. (A) to the Karar. Under these circumstances, it is not possible to hold that Karar in question embodied an irrevocable settlement. In the very nature of things, the arrangement made under that Karar must be held to be one which is revocable if there is any substantial change in the circumstances of the family. For our present purpose it is sufficient if we hold that the properties allotted for the enjoyment of the various members of the family under the Karar continued to be the properties of the family. In view of section 9(1) of the Act in computing the total agricultural income of the H.U.F., all agricultural income arising from the assets remaining the property of the family should be deemed to be the agricultural income of the family. We have earlier come to the conclusion that the agrrangement made under the Karar is revocable if there is substantial change in the circumstances of the family. That arrangement confers benefit on the family inasmuch as it is absolved of the responsibility to maintain its members which, otherwise is its responsibility. Section 9 (1) of the Act is similar to section 16 (1) (c) of the Indian Income tax Act, 1922. The latter section has come up for consideration by courts. The courts have laid down the test that if 1006 the income in dispute is considered as having been applied to discharge an obligation of the assessee, the same is liable to be included in the assessable income of the assessee but if on the other hand the same had been diverted by an overriding charge, then it is not liable to be included in the assessable income of the assessee as it ceased to be his income. If we apply this test to the facts of the present case, it is clear that the income in dispute continued to be the income of the family. It was merely applied to discharge an obligation of the family namely the obligation to maintain the junior members of the family. At first sight some of the decided cases on the subject appear to speak in conflicting voices. But on a careful examination, it is possible to find out the dividing line. The earliest decision on the subject is that of the Judicial Committee in Raja Bejoy Singh Dudhuria vs Commissioner of Income tax, Bengal(1). The, assessee therein succeeded to the family ancestral estate on the death of his father. Subsequently his step mother brought a suit for maintenance against him in which a consent decree was made directing the assessee to make a monthly payment of a fixed sum to his step mother and declaring that the maintenance was a charge on the ancestral estate in the hands of the assessee. While computing his income, the assessee claimed that the amounts paid by him to the step mother under the decree should be excluded. That contention was not accepted by the authorities under the Act as well as by the High Court but the Judicial Committee reversing their decision came to the conclusion that though assessee 's liability under the decree did not fall within any of the exemptions or allowances conceded in sections 7 to 12 of the Indian Income tax Act, yet the sums paid by the assessee to his stepmother were not "income" of the assessed at all; the decree of the court by charging the appellant 's whole resources with a specific payment to his step mother had to that extent diverted his income from him and had directed it to his step mother; to that extent what he received for her was not his income; it was not a case of the application by the appellant of part of his income in a particular way; it was rather the allocation of a sum out of his revenue before it became income in his hands. This decision at the first sight appears to lend support to the assessee 's contention but in understanding the ratio of the decision, we must bear in mind the fact that in that case the Advocate General had abandoned before the High Court the contention that the assessee and his stepmother were members of undivided family and accepted the Position that the appellant was liable to be assessed as an individual and in no other manner. In view of this concession, the payment that had to be made to the step mother of the assessee became a (1) 1007 charge on tile estate even before that estate devolved on him. Therefore what the assessee got was the income of the property minus what he had to pay to his step mother. The above conclusion of ours receives support from a later decision of the Judicial Committee in P. C. Mullick and anr. (Executors) vs Commissioner of Income tax, Bengal(1). Therein a testator had by his will appointed the appellants his executors and had directed them to pay Rs. 10,000/ out of the income of his property on the occasion of his addya sradh for expenses in connection therewith to the person who was entitled to perform the sradh. He had also directed them to pay out of the income of his property the costs of taking out probate of his will. During the year of account the executors had paid Rs. 5,537/ for expenses in connection with the addya sradh and a sum of Rs. 1,25,000/ for probate duty. The question arose whether those payments were deductible in computing the chargeable income. The Judicial Committee held affirming the judgment of the Calcutta High Court, that the payments made for the sradh expenses and the costs of probate could not be excluded in computing the chargeable income. Those were payments made out of the income of the estate coming to the hands of the appellants as executors and in pursuance of obligation imposed by the testator. Their Lordships were of opinion that it was not a case in which a portion of the income was by an overriding title diverted from the person who would otherwise have received it as in Bejoy Singh Dudhuria 's (2) case, but a case in which the executors having received the whole income apply a portion of it in a particular way. From this judgment of the Judicial Committee, it is dear that the true test is that if the income in question is an income of the assessee, the application of the same being not relevant for determining its assessability, it is assessable in his hands but if it is not his income then it cannot form part of his assessable income. The scope of section 16 (1) (c) of the Indian Income tax Act, 1922 came up for consideration by this Court in Commissioner of Income tax, Bombay City vs Sitaldas Tirathdas (3) . Therein the assessee Sitaldas Tirathdas of Bombay had many sources of income, chief among them being property, stocks and shares, bank deposits and share in a firm known as M/s. Sitaldas Tirathdas. He followed the financial year as his accounting year. For the assessment years 1953 54 and 1954 55, his total income was respectively computed at Rs. 30,375/ and Rs. 55,160/ . This computation was not disputed by him but he sought to deduct Rs. 1350/ in the first assessment year and a sum of Rs. 18,000/ (1) (3) (2) 1008 in the second assessment year on the ground that under a decree, he was required to pay these sums as maintenance to his wife and his children. In support of his claim, he relied on the decision of the Judicial Committee in Bejoy Singh Dudhuria 's case (supra). This Court rejected that contention observing (at pp. 374 and 375 of the Report) "In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible, but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one 's own income, which has been received and is since applied. The first is the case in which the income never reaches the assessee who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. " Counsel for the assessee tried to lay stress on the observation of this Court that the income should reach the hands of the assessee before it can be considered as his income. According to him in the case before us, the income in dispute never reached the hands of the assessee. We are unable to accept this contention as correct. The income is the income of the family. It reached the hands of the family as soon as it reached the hands of any of the members of the family who were entitled to receive it on behalf of the family. The members of the family received that income on behalf of the family and applied the same in discharge of an obligation of the family. When this Court spoke of the income reaching the hands of the assessee, it did not refer to any physical act. It was dealing with a legal concept a receipt in law. Viewed that way, it is quite clear that the income with which we are concerned in this case was received by the family. One other decision on the point in issue which we would like to refer is the decision of the Bombay High Court in Commis (1) 1009 sioner of Income tax, Bombay vs Makanji Lalji(1), wherein Beaumont C.J., speaking for the court held that in computing the income of the H.U.F. for purposes of income tax, moneys paid to the widow of a deceased coparcener of the family as maintenance and residence allowance cannot be deducted, even though the amount of such allowance has been fixed by a decree of the Court and has be en made a charge on properties belonging to the family. It is not necessary to refer to cases which deal with the diversion of the income of the assessee. The test to be applied for finding out whether there is diversion of income or not is set, out by this Court in Commissioner of Income Tax, Bombay City, V. Ratilal Nathalal(1). For the reasons mentioned above this appeal fails and the same is dismissed with costs. V.P.S. Appeal dismissed.

The assessee was a Hindu undivided family of which the appellant was the Kamavan. It possessed agricultural properties. There was a family settlement among all the members of the family then living. The settlement allotted some properties to some of the male members but did not provide for their devolution. Also the joint status of the members was not disrupted and the properties allotted for the enjoyment of the various members of the family continued to be the properties of the family. The liability to maintain the other male members and the responsibility of performing the marriages of the female members continued to be that of the Karnavan. He was also responsible for the payment of land revenue in respect of the family properties excepting some items. On the question whether the income of the properties put in possession of the male members under the settlement continued to be the income of the family and therefore liable to tax under the Kerala Agricultural Income tax Act, 1950, the department, Tribunal and the High Court on reference, held against the assessee. Dismissing the appeal to this Court, HELD : Section 9(1) of the Act is similar to section 16(1) (c) of the Income tax Act, 1922. Under the latter section the test is that if the income in dispute is considered as having been applied to discharge an obligation of the assessee, the same is liable to be included in the assessable income of the assessee, but if on the other hand the same bad been diverted by an overriding charge then it is not liable to be so included as it ceases to be the assessee 's income. [1006 A B) In the present case, the arrangement only provided for maintenance and did not give any absolute right in any portion of the family properties to any one. It thus conferred benefit on the family inasmuch as it was absolved of the responsibility of maintaining its members. [106 5 G H] Further, it was not even a permanent arrangement and was revocable if there was any substantial change in the circumstances of the family. The properties would 'go back to the possession of the Karnavan on the death of the member to whom the property was allotted. [1005 C, D, E] The members of the family received the income of the various properties allotted to them on behalf of the family, and applied the same in discharge of an obligation of the family. Therefore, the income reached the hands of the family as soon as it reached the hands of any of its members. [1008 F H] 1001 Hence, under section 9(1) of the Act, the income should be deemed to be that of the assessee. [1005 F G] Raja Bejoy Singh Dudhuria vs C.I.T., Bengal, and Mullick vs C.I.T. Bengal, , explained and applied. C.I.T., Bombay City vs Sitaldas Tirathdas, , followed. C.I.T., Bombay vs Makanji Lalji, and C.I.T., Bombay City vs Ratilal Nathalal, 25 l. T.R. 426, referred to.

Civil Appeals Nos. 415 418 of 1960. Appeals from the judgments and orders dated September 23, 1958, of the Bombay High Court in Special Civil Applications Nos. 205 and 214 of 1958. 383 A. V. Viswanatha Sastri, section P. Verma, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants (in C. A. No. 415 of 1960). A. section Bodde and Ganapat Rai, for the appellants (in C. A. No. 417 of 1960) and respondents (in C. A. No. 418/60). H. R. Khanna and R. H. Dhebar, for the appellants (in C. As. Nos. 416 and 418 of 1960) and respondent No. 1 (in C. As. Nos. 415 and 417 of 1960). A. G. Ratnaparkhi, for respondent No. 3 (in C. A. No. 415 of 1960). 1961 November 15. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These four appeals consist of two sets of cross appeals each and they arise from two petitions filed in the High Court of Bombay at Nagpur challenging the validity of the notification dated June 11, 1958, issued by the State of Bombay, now represented by the State of Maharashtra, under section 5 of the , ( 11 of 1948) (hereafter called the Act.) The petitioners in Special Civil Application No. 205 of 1958 are the Bidi, Bidi Leaves and Tobacco Merchants ' Association, Gondia and two others, whereas the petitioners in Special Civil Application No. 214 of 1958 are Haji latif Ghani Kachhi and five others. The impugned notification consists of seven clauses. By the majority decision of the High Court cls. 1 to 5 and the first part of cl. 6 are held to be intra vires, whereas the latter part of cl. 6 and cl. 7 as well as the explanation added to it are held to be ultra vires. The first part of the finding is Challenged by the petitioners in the two writ petitions by their Civil Appeals Nos. 415 and 417 respectively, while the latter part of the finding is challenged by the State of Maharashtra in its Civil Appeals Nos. 416 and 418 respectively. Thus, Civil Appeals Nos. 415 and 416 are cross 384 appeals and Civil Appeals Nos. 417 and 418 are cross appeals. These appeals have been brought to this Court with a certificate granted by the High Court under article 132(1) of the Constitution. As will presently appear the only point which calls for our decision in these appeals is one relating to the validity of the impugned notification; and so the certificate might well have been given under article 133 (1)(c) and not under article 132 (1) because the case does not involve a substantial question of law as to the interpretation of the Constitution. For convenience we will refer to the petitioners in the writ petitions as petitioners and the State of Maharashtra as the respondent in these appeals. The petitioners are bidi manufacturers in different parts of the Vidarbha region and they employ a large number of persons for the purpose of making bidis for them. It appears that the Government of the State of Madhya Pradesh within whose jurisdiction Vidarbha was then situated had fixed the minimum rates of wages in respect of employment in tobacco (including bidi making) manufactories by issuing a notification on January 11, 1951. This notification had purported to fix the minimum rates of wages per 1000 bidis by reference to different localities in the State. The rates thus fixed were inclusive of dearness allowance or compensatory cost of living allowance and they varied from place to place as specified in columns 2 to 4 of the notification respectively. An Advisory Board was thereafter constituted by the said State in exercise of the powers conferred on it by section 7 of the Act. Subsequently, in 1956 the said minimum rates of wages were revised by a notification issued on February 23, 1956. As a result of the State Reorganisation Act, 1956 (37 of 1956) the Vidarbha region became part of the State of Bombay. After Vidarbha thus became a part of the State of Bombay the Government of Bombay notified that the Advisory Board appointed by the said Government 385 under section 7 shall be the Advisory Board for Vidarbha. This notification was issued on November 1, 1956. The Government of Bombay then issued a notification publishing the draft of the notification which was proposed to be issued under section 5, sub section (2) read with cl. (b) of sub section (1) of section 5, and notice was thereby given to all the bidi manufacturers that the said draft would be taken into consideration on or after March 1, 1957. Thereafter the procedure prescribed by section 5 was followed, an enquiry was held, a report of the Advisory Board was received and finally the impugned notification was issued on June 11, 1958. It is the validity of the several clauses contained in this notification that is challenged before us in the present appeals. In their petitions the petitioners alleged that cls. 3 to 7 of the notification were invalid and ultra vires the powers of the respondent under sections 3, 4 and 5 of the Act. According to them the respondent had no power to make provision for deciding as to the extent to which "chhat" will be permitted or directing the action to be taken by the employer and employee relating to bad bidis. Their contention was that the said clauses purported to make provisions for the settlement of disputes between the employer and the employee concerning an Industrial matter and were outside the purview of the respondent 's power under the relevant sections. They urged that the different provisions of the notification were so interrelated that it was difficult to dissociate one from the other and so it was necessary that the notification as a whole should be quashed. The respondent disputed the correctness of the contentions raised by the petitioners. It urged that there were constant disputes among bidi manufacturers and bidi workers regarding the minimum wages fixed in the Vidarbha region and so the respondent thought it necessary to institute 386 an enquiry into these complaints in order to decide whether it was necessary to revise the minimum wages prescribed by the earlier notification and the mode of determining those wages. It was only after a comprehensive enquiry was held at which all parties were heard that the respondent issued the notification in question. Its case was that the minimum rates of wages had been fixed on industry cum regionwise basis and that cls. 3 to 7 were intended to make the fixation of minimum rates of wages effective. According to the respondent, the absence of any rules regarding the exercise of the right of "chhat" by the employers tends to deprive the bidi workers of their right of getting minimum rates of wages, and so cls. 3 to 7 were deliberately introduced to make the material provisions of the Act effective in their implementation. These petitions were first heard by Mudholkar and Kotval, JJ. Mudholkar, J. held that all the clauses in the impugned notification were valid for, according to him, though the Act had not conferred express powers on the respondent to prescribe the impugned clauses of the notification yet the respondent could prescribe the said rules under the doctorine of implied powers. Kotval, J., agreed that cls. 1 and 2 were valid but he thought that even under the doctrine of implied powers the remaining cls. 3 to 7 could not be sustained. According to him the said clauses were, however, severable from cls. 1 and 2 and so they should be struck down leaving cls. 1 and 2 in tact. Since there was a difference of opinion between the two learned judges the matter was referred to Tambe, J. He held that cls. 1 to 5 and the first part of cl. 6 were intra vires where as the latter part of cl. 6 and cl. 7 as well as the explanation added to it were ultra vires. After Mr. Justice Tambe pronounced his judgment the matter was again referred to a Division Bench, and the Division Bench, in accordance with the majority opinion, has upheld the validity of cls. 1 to 5 and 387 the first part of cl. 6 and has struck down the latter part of cl. 6 as well as cl. 7 and its explanation. It is against this decision that the petitioners and the respondent have come to this Court with a certificate granted by the High Court in that behalf. Before dealing with the merits of the controversy between the parties it would be relevant to refer to the material provisions of the Act. The Act was passed in 1948 in order to provide for fixing minimum rates of wages in certain employments. Its provisions apply to the scheduled employment which expression under section 2 (g) means an employment specified in the schedule, or any process or branch of work forming part of such employment. It is common ground that employment in any tobacco (including bidi making) manufactory is a scheduled employment under the schedule of the Act. Section 2(h) defines wages and it prescribes inter alia, that wages means all, remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment, express or implied, were fulfilled be payable to a person employed in respect of his employment or of work done in such employment, and includes house rent allowance, but does not include the items specified by cls.(i) to (v) of the said definition. Section 3 authorises the appropriate Government to prescribe different minimum rates of wages for different scheduled employments, different classes of work in the same scheduled employments, adults, adolescents, children and apprentices and different localities. Under section 4 are prescribed the components of the minimum rates of wages. Section 5 provides for the procedure for fixing and revising minimum wages. Section 7 provides, inter alia, that minimum wages payable under the Act shall be paid in cash. Under section 12 an obligation is imposed on the employer to pay every one of his employees engaged in the scheduled employment wages at a rate 388 not less than the minimum rate of wages fixed by the notification issued in that behalf. Section 12 (2) saves the application of the provisions of the payment of wages Act. Section 20 authorises the appropriate Government to appoint an authority to hear and decide for any specified area all claims arising out of the payment of less than the minimum rates of wages and other claims specified therein. The remaining sub sections of the said section prescribe the procedure for determining such claims. Under section 21 a single application can be made in respect of a number of employees who wish to prefer a claim for the decision of the authority under section 20. Section 22 prescribes penalties for the offences therein specified. Section 22A provides that if any employer contravenes any of the provisions of the Act or any rule or order made thereunder he shall, if no other penalty is provided for such contravention, be punishable with fine which may extend to five hundred rupees. Section 22B provides, inter alia the manner in which Courts may take cognizance of a complaint against any person for an offence committed under the Act. That in brief is the scheme of the material provisions of the Act. At this stage it would be necessary to read the several clauses of the impugned notification : "No. MWA. 1557 J. In exercise of the powers conferred by sub section (2) of section 5 read with clause (b) of sub section (1) of that section of the (XI of 1948) and after consulting the Advisory Board and in supersession of the former Government of Madhya Pradesh Labour Department Notification No. 564 451 XXIII, dated 23rd February, 1956, the Government of Bombay hereby revise the minimum rates of wages in respect of the employment in any tobacco (including bidi making) manufactory in the Vidarbha region of the State of Bombay 389 as mentioned in the Schedule hereto annexed and directs that this notification shall come into force with effect from 1st July, 1958. SCHEDULE Subject to the other provisions of this Schedule, the revised minimum rates of wages payable to employees per thousand bidis (when leaves are supplied by the employer) shall be as follows: Area Revised rates in Rs. (i) Nagpur District . 1.69 (ii) Bhandara District . 1.62 (iii) Chanda, Akola, Buldana, Yeotmal, Amravati and Wardha District . 1.56 2. For all bidis in which 7 chhataks or more of tobacco mixture is used and for those bidis which are known as "Hatnakun" bidis, there shall be an increase of 12 Naye Paise per 1000 bidis in the rates mentioned above in all the areas. It shall be within the discretion of the employer to decide which are "chhat" bidis or bad bidis, up to 5 per cent of the bidis prepared by the employee. If the employer decided that any bidis are "chhat" or bad, the "chhat" or bad bidis up to 5 per cent shall be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer. If, however the employer wants to retain these "chhat" or bad bidis, he shall pay full wages for the same to the employee. If "chhat" or bad bidis are more than 5 per cent, but less than 10 per cent, and if there is any dispute between the employer 390 and the employee as to whether the '"chhat" or bad bidis is done properly or not, equal number of representatives of the employer and the employees shall inspect the "chhat" is done properly or not. If there is any difference of opinion among the representatives of the two sides, the majority opinion shall prevail. If the opinion is equally divided and the employer wants to retain the "chhat" bidis, he shall pay wages for "chhat" bidis between 5 per cent to 10 per cent at half the rates fixed above. If the employee does not want to retain these bidis the employee shall destroy them forthwith. The employer shall nominate his representatives and the employees shall elect their representatives. In the case of "chhat" above 10 per cent., the employee shall be entitled to full wages. It shall, however, be open to the employer to take suitable action against the employee if the "chhat" is more than 10 per cent for 6 continuous working days in a calendar month. The "chhat" shall be made once in a day only, at any premises within a distance of not more than 2 miles from the premises where bidis are manufactured. Explanation: For the purpose of this Schedule the expression "employer" includes his thekedar, contractor or agent as the case may be. ' The validity of cls. 1 and 2 is not in dispute. The petitioners, however, contend that cls. 3 to 7 are outside the powers conferred on the respondent by the relevant provisions of the Act and as such are invalid. It is common ground that even if the impugned clauses are held to be ultra vires they are 391 severable from cls. 1 and 2 so that the invalidity of the impugned clauses will not affect the validity of the said two clauses and they will stand even if the other clauses are struck down. In determining the question about the validity of the impugned clauses it is necessary to refer to two material facts. The nature and scope of the terms of contract between the petitioners and their employees are really not in dispute. It is alleged by the petitioners that they employ a large number of persons for the purpose of making bidis for them, that these persons are supplied with tendu leaves, tobacco and other necessary materials, they take the said articles to their respective places where they work and brings back the bidis prepared by them to the employer. The employer then examines the bidis ' accepts such of them as are found to have been prepared according to the terms of the contract rejects such of them as are found to be of poor quality and not prepared according to the terms of the contract and pays for the bidis actually accepted. The respondent has not traversed these allegations made by the petitioners. It admitted that the workers are paid on piece rate basis and the payment is made "on the basis of bidis selected and accepted by the employer after rejecting certain portions of bidis prepared by the workers". In fact the respondent has expressly stated that "there is a recognised practice of making payment on the basis of bidis accepted by employers as coming up to a certain standard of skill". It is further admitted that the employers have insisted on their right in principle of rejecting the sub normal or sub standard bidis prepared by the employees. Thus, there is no doubt that under the terms of the contract the workers are entitled to receive payment only for the bidis accepted by the employers, and not for those 392 which are rejected. It is also not disputed that the bidis which are rejected by the employers otherwise known as "chhats" are retained by the employer though he refuses to take them into account in the matter of payment to the workers on the ground that they do not come up to the standard of skill or quality prescribed by the contract. It also appears to be true that the employees in this region have been protesting against improper rejection of the bidis by the employers. They have contended that the employers reject an unreasonably high proportion of bidis falsely dubbing them as of sub normal quality without paying anything to the workers for their labour spent in rolling such rejected bidis. In its affidavit the respondent has emphasised that as a result of to is method of discarding bidis on the ground that they are of sub standard quality bidis workers were deprived of the labour charges for bidis which are rejected by their employers; and so it was urged that the question of fixing maximum rates of wages for bidi workers necessarily involved the question as to the quantum or percentage of such rejection which should be permissible to the employer. According to the respondent the impugned notification has purported to fix the minimum rates of wages after taking into consideration the problem presented by the practice of discarding bidis and paying wages to the workers only for such bidis as are accepted. In support of the validity of the notification the respondent also relied on the fact that the formula prescribed by the notification had been evolved after taking into account the representations made both by the employers and the employees. In fact, according to the respondent, this said formula represented a substantial degree of agreement between the parties on this point. It would thus be seen that on the two material facts there is really no serious dispute between the 393 parties. The respondent agrees that under the practice which must be taken to be consistent with the implied terms of contract between the bidi manufacturer and his employee, after the bidis are prepared by the employees and brought back to the employer the employer has a right to examine the quality of the bidis, accept only such as have come up to the standard prescribed by the contract and reject the rest. The practice further justifies the payment of wages to the employees only for the bidis actually accepted and not for those which are rejected though the rejected bidis may be retained by the employer. On the other hand, it is not, and cannot be seriously disputed by the petitioners that in some cases this practice may work great hardship on the workers, and in every case the workers do not get wages for the labour put by them in rolling the rejected bidis. The main question which arises for our decision in the present appeals is whether the injustice resulting from the practice of discarding bidis and not making any payment for them to the workers can be checked, controlled and regulated by the respondent by issuing a notification under the powers conferred on it by section 5 of the Act. If the relevant provisions of the Act confer upon the respondent the power to check the evil against which the workers complain then of course the validity of the impugned clauses would be beyond challenge. If, on the other hand, the power to prescribe or revise minimum rates of wages does not either expressly or by necessary implication include the power to provide for the machinery to check the evil in question, then the impugned clauses would be ultra vires however necessary it may be to check and control the said evil in question. In this connection let us broadly examine the scope and effect of the impugned clauses. Clauses 1 and 2 prescribe the revived minimum rates districtwise and provide for the payment of higher 394 Price for the bidis known as Hatnakhun bidis in all and the said districts. These two clauses are obviously valid and the petitioners have not disputed the conclusion of the High Court in that behalf. Clauses 3 to 6 deal with the problem of the that bidis or bidis which are rejected because they are bad. Clause 3 leaves it to the discretion of the employer to decide which are chhat bidis up to 5 percent of the bidis prepared by the employees. This clause provides that the bidis to rejected would be destroyed and tobacco recovered from them retained by the employer; and it adds that if the employer wants to retain the rejected bidis he shall pay full wages for the same to the employee. In other words this, clause means that the employer may discard bidis up to 5 percent but if he does not want to pay the workers for the said bidis he must destroy them. That would show that the discretion exercised by him is honest and fair. If, on the other hand, he wants to retain the said bidis that would mean that he thinks that the bidis would find a market and in that case he must pay for them on the basis that they are good bidis. On principle this provision may perhaps not be open to any serious criticism and it is not unlikely that if the notification had not made further detailed provisions by cls. 4 to 6 the present dispute would not have been brought before the High Court. The employers probably do not have a serious grievance against cl. 3 on the merits. Clause 4 deals with cases where the rejection may be more than 5 per cent but less than 10 per cent of total work produced by the worker. In regard to this class of cases cl. 4 provides for a machinery to deal with cases falling under it. Representatives of the employers and employees have to be appointed and they have to decide whether the work have been properly done or not. The decision would be according to the opinion of the majority. If the opinion is equally divided 395 and the employer wants to retain the chhat bidis, between 5 per cent to 10 per cent he shall pay at half the rates fixed in cl. 1. If the employer does not want to retain them the employees shall destroy them, The clause does not seem to provide for 3 7 case where the majority opinion may support the rejection between 5 per cent and 10 percent; that is a lacuna in the clause. The only comment which can be legitimately made against the clause on its merits is that the setting up of the machinery for a kind of adjudication of the dispute between the employer and the employee may, instead of solving the difficulties in actual working, add to them. That takes us to cl. 6. This clause has been very severely criticised by the petitioners. It provides that in case of chhat about 10 per cent the employees shall be entitled to full wages which means that even if chhat above 10 per cent is made reasonably and for a proper cause the employer has to pay for the discarded work as therein prescribed; the only right given to the employer in such a case is to take suitable action against the employee if the chhat is more than 10 per cent and that too for six continuous working days in a calendar month. Prima facie this clause appears to be unreasonable and unjust. The explanation to cl. 7 is also criticised by the petitioners because the thekedar, contractor or agent, who is appointed by the employer would, if the explanation is valid, be liable to perform all the obligations imposed on the employer by the relevant provisions of the Act such as sections 12 and 18. We have examined the broad features of the notification and indicated the comment made on it by the petitioners for the purpose of showing that on the merits some of the clauses do not appear to be fair and just, but that is not the ground on which their validity can be or has been challenged before us. The main argument in support of the challenge 396 rests on the assumption that cls. 3 to 7 are all beyond the powers conferred on the respondent by the relevant provisions of the Act; and it is this argument which needs to be examined. It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act, 1947(14 of 1947) is given wide powers and jurisdiction to make appropriate awards in determining in industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co operation between them. Such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. Mukherjee, J., as he then was, has observed in The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or given effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace." since the decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay, it has been repeatedly held that the jurisdiction of industrial tribunals if much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd., vs Brijnandan Pandey; The Patna Electric Supply Co. Ltd., Patna vs The Patna Electric Supply Workers Union. Indeed, during the last ten years and more 397 industrial adjudication in this country has made so much progress in determining industrial disputes arising between industrial of different kind and their employee that the jurisdiction and authority of industrial tribunals to deal with such disputes with the object of ensuring social justice is no longer seriously disputed. But, it is necessary to remember that no claim can be made for such broad jurisdictional power by the respondent when it purports to issue a notification under the provisions of the Act. These powers and authority would necessarily be conditioned by the relevant provisions under which it purports to act, and the validity of the impugned notification must therefore be judged not by general considerations of social justice or even considerations for introducing industrial peace; they must be judged solely and exclusively by the test prescribed by the provisions of the statute itself. It appears that in 1956 before Vidarbha became a part of the state of Bombay the State Government of Madhdya Pradesh had made a comprehensive reference for the arbitration by the State Industrial Court between the bidi manufacturers of Bhandara District and their employee. In this dispute all the material issues arising from the prevailing practice which authorised employers to reject chhat bidis had been expressly referred for adjudication. Subsequently, when the impugned notification was issued the respondent apparently took the view that what could have been achieved by reference to the arbitration of state Industrial Court may well be accomplished by issuing a notification under section 5 of the Act. It may be that there is substance in the grievance made by the employees that the practice of rejecting chhat bidis often leads to the injustice and deprives them of the wages legitimately earned by them by rolling the said bidis and there can be no doubt that if a comprehensive reference is made for the decision of 398 this industrial dispute between the bidi manufacturers and their employees an award may well be passed which will resolve this dispute; but the question which falls for our decision is whether the relevant provisions of the Act authorised the State Government to make rules for the decision of the dispute in that behalf and for the payment of minimum rate of wages on the basis of such decision? In our opinion, the answer to this question has to be in the negative. What is the extent of the authority conferred on the respondent in fixing or revising minimum rates of the wages under the relevant provisions of the Acts In dealing with this question we must necessarily bear in mind the definition of the term "wages" prescribed by section 2(h). As we have already been the term "wages" includes remuneration which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment. In other words, the terms "wages" refers to remuneration payable to the employee as a result of the terms of employment. What would be the amount to which the employee is entitled if the other terms of the contract are preferred ? That the question which has to be asked in determining what the term "wages" means under (h). No doubt sections 3, 4 and 5 authorised the appropriate Government to fix the minimum rates of wages. In other words, if the wages fixed by a contract which is either express or implied are found to be low authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said Government regards as the minimum wages in the particular scheduled employment in the particular area concerned. This means that power is conferred on the appropriate Government to modify one term of the contract express or implied between the employer and the 399 employee and that is a term which has reference to the payment of wages. If for a certain piece of work done by the employee the employer has agreed to pay him either expressly or by implication a certain amount of wages the appropriate Government can issue a notification and prescribe that for the said work done under the contract the employer must pay his employee a much higher rate of wages and the higher rate of wages thus prescribed would be deemed to be the minimum rate of wages between the parties. It would, however, be noticed that in defining "wages" cl. 2(h) postulates that they would be payable if the other terms of the contract of employment are fulfilled. That is to say, authorising the fixation of minimum rates of wages the other terms of the contract of employment have always to be fulfilled. The fulfillment of the other terms of the contract is a condition precedent for the payment of wages as defined under section 2 (h) and it continues to be such a condition precedent even for the payment of the minimum rates of wages fixed and prescribed by the appropriate Government. The significance of the definition contained in section 2(h) lies in the fact that the, rate of wage may be increased but no change can be made in the other terms of the contract. In other words, the Act operated on the other terms of the Contract on the other terms of the contract between the employer and the employee. That is the basic approach which must be adopted in determining the scope and effect of the powers conferred on the appropriate Government by the relevant provisions of the statute authorising it to prescribe fix or minimum rates of wages or to revise them. What the appropriate Government is authorised to do is to proscribe, fix or revise wages and wages are defined to be remuneration payable to the employees if the terms of the contract of employment, express or implied, were fulfilled. 400 This definition runs, as it inevitably must, through the and the material provisions of the Act and its importance cannot therefore be ignored. Bearing this fact in mind let us examine the impugned clauses of the notification. Clauses 1 and 2 clearly fall within the purview of the power conferred on the respondent because they do no more than prescribe the minimum rates of rates as therein specified; out cls. 3 to 7 clearly and unambiguously purport to deal with the terms of the contract between the parties other than that relating to the remuneration. These clause are obviously intended to deal with the dispute between the employers and their employees as to how bidis should be discarded and in that proportion and what should be the procedure to be followed in regard to the? payment for such discarded bidis. In appreciating the true effect of these clauses it is necessary to recall that the parties are agreed about the practice at present prevailing which must be taken to represent the terms of the contract either express or implied. According to the said practice the employer decides which bidis should he discarded, he retains the discarded bidis and pays only for such bidis as are accepted be him. It if plain that the impugned clauses of the notification purport to modify these terms in material particulars and that and be plainly outside the jurisdiction of the authority of the respondent. It may well form the subject matter of reference for industrial adjudication but it cannot form the subject matter of a notification prescribing minimum rates of wages under sections 3, 4 or 5. It is conceded by the respondent that there is no express provision in the act, which authorised the setting up of the machinery as prescribed by cls. 3 and 4 or for laying down the manner in which the employer should make payment for the discarded bidis. It is, however, strenuously urged that the validity of these clauses should be upheld on the ground of the 401 implied power of the respondent; and that takes us to the question as to the true scope and effect of the doctrine of implied power. "One of the first principles of law with regal to the effect of an enabling act", observes Craies, "is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view(1)". The principle on which the doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit concedere videtur et illud sine quo res ibsa ease non potest '. This maxim has been thus translated by Broom thus: "whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect". Dealing with this doctrine Pollock, C.B., observed in Michaely Fenton and James Fraser vs John Stephen, Hempton "It becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bastow, I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be else done, then that something will be supplied by necessary intendment." This doctrine can be invoked in cases "where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means as are essentially necessary to its execution (3). " In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some 402 auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature as that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of doctrine of implied powers is not seriously in dispute before us. The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned clauses in the notification. The respondent strenuously contends that cls. 1 and 2 of the notification which have prescribed the minimum rates of wages per 1000 bidis would become ineffective unless cls. 3 to 7 supplement them. The argument is that by improper or dishonest exercise of the power conferred on the employer by the contract of employment to discard chhat bidis the employees would be cheated of their legitimate due wages under cls. 1 and 2 and so, in order to make the provisions of cls. 1 and 2 effective some subsidiary provisions had to be made for settling the dispute between the employer and his workmen in regard to chhat bidis. As we have already observed, the grievance made by the employees on the score of improper rejection of bidis may in many cases be well founded; but the seriousness of the said grievance and the urgent necessity to meet it would hardly be a proper basis for invoking the doctrine of implied power where the provisions of the statute are quite clearly against the assumption of such implied power. The definition of the term "wheres" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one 403 term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages" can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act. When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers Besides, in this connection it is also necessary to bear in mind the provisions of sections 20 and 21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employees can make a claim in that behalf and the same would be tried under sections 20 and 21. Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 of the notification have prescribed the revised minimum rates of wages. If, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by section 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the notification. There is yet another consideration which is relevant in dealing with the question about the implied powers. The doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement. In the present 404 case all that section 5 requires is the fixation of minimum rates of wages, and that has been done by the notification by cls. 1 and 2. What the subsidiary clauses purport to do is to make the enforcement of the fixed rate effective by providing for a machinery to deal with the possible disputes arising between the parties as a result of the practice of discarding chhat bidis. In other words, cls. 1 and 2 fix the minimum rates of wages and thus section 5 has been complied with and enforced. The remaining clauses purport to make the implementation of the provisions of cls. 1 and 2 effective. That is very different from giving effect to section 5 itself. The enforcement of the notification is clearly not the same thing as exercising the power of fixing or revising the minimum rates of wages under section 5. A Power may be implied, if necessary, in discharging the duty imposed upon the appropriate Government or in exercising the power conferred on the State Government in the matter of fixing or revising the minimum rates of wages; but surely no power can be implied for making effective the implementation of the notification issued under the said power or in the discharge of the said duty. The purpose of the Act cannot be said to have failed after the minimum rates of wages are prescribed and notified. What may turn out to be ineffective is the provision for payment of the said wages by reason of the rejection of good bidis; but that is a matter of an industrial dispute which has to be adjudicated upon under sections 20 and 21 or under other provisions of the law. It is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed, but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by section 5. The proper remedy 405 in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by section 5 of the Act and must therefore be declared to be ultra vires. It is common ground that these clauses are severable from cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses. In the result Civil Appeals Nos. 415 and 417 are allowed and Civil Appeals Nos. 416 and 418 are dismissed. Respondent to pay the costs of the petitioners in Civil Appeals Nos. 415 and 417. One set of hearing cost. C.A. Nos. 415, 417, allowed. C.A. Nos. 416, 418 dismissed.

By section 3 of the , the appropriate Government is authorised to fix minimum rates of wages for employees in the Scheduled employments and section 5 lays down the procedure for fixing and revising such minimum wages. The State Government published a notification dated June 11, 1958, fixing minimum rates of wages in respect of employments in bidi making in the Vidarbha region. Clauses 1 and 2 of the notification prescribed the minimum rates district wise and provided for higher rates for making bidis known as 'Hatnakhun ' in all the districts. Clauses 3 to 7 dealt with disputes between the employers and the employees as to how bad bidis were to be discarded and in what proportion and as to the payment for such discarded bidis. The appellant contended that cls. 3 to 7 of the notification were ultra vires: ^ Held, that cls. 3 to 7 of the Notification were outside the purview of the powers conferred upon the State Government 382 by section 5 of the Act and were ultra vires. The provisions of the Act empowered the Government only to fix minimum wages; they did not authorise it to make rules for resolving the disputes regarding the rejection of bad bidis and regarding the payments to be made for the rejected bidis. The Act empowered the Government to fix the remuneration payable to an employee if the other terms of the contract were observed; it did not authorise the Government to vary the other terms. Under the contract the employer was entitled to decide which bidis to discard, and to retain such bidis and to pay only for such bidis as were accepted by him. Clauses 3 to 7 of the notification purported to modify these terms in material particulars and this was not within the power conferred by the Act upon the Government. Nor could these clauses be justified on the basis of implied powers. The doctrine of implied powers could only be invoked when it was found that a duty was imposed or a power conferred on an authority buy a statute and it was further found that the duty could not be discharged or the powers could not be exercised at all unless some auxiliary or incidental power was assumed to exist. Even if cls. I and 2 would become ineffective without cls. 3 to 7 being there that would not be a proper basis for invoking the doctrine of implied powers. The definition of 'wages ' in section 2(h) of the Act postulated the binding character of the other terms of the contract and brought within the purview of the Act only the term relating to wages. By implication the very basic concept of wages could not be ignored. By sections 20 and 21 the Act makes specific provision for the settlement of claims in regard to payment of minimum wages and as such no powers could be implied in the Government to set up a separate machinery to settle such disputes. Further no power could be implied to make cls. 1 and 2 of the notification effective: such power could only be implied if it was necessary to make section 5 of the Act itself effective. Michael Fenton and James Fraser vs Jhon Stephen Hompton, (1957 59) 117 R. R. 21, referred to.

ppeal No. 23 of 1954. Appeal under article 133(1) of the Constitution of India from the Judgment and Decree dated the 28th February, 1952, of the High Court of Judicature at Allahabad in Writ Application No. 7297 of 1951. C. P. Lal for the appellant. N. C. Chatterjee (Radhey Lal Aggarwal, with him) for the respondent. May 3. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an appeal by the Sales Tax Officer, Pilibhit, against the judgment of the High Court of Allahabad granting firstly, a writ of certiorari quashing certain assessment orders made against the respondent, and secondly, a writ of prohibition in respect of certain other proceedings for 244 assessment of tax under the provisions of the Uttar Pradesh Sales Tax Act (Act XV of 1948). The respondent is a firm doing business in forward contracts, and was assessed in respect of such contracts to a tax of Rs. 1,082 8 0 for the year 1948 1949 by an order dated 27th February, 1950, Exhibit A, and to a tax of Rs. 7,369 for the year 1949 1950 by an order dated 23rd May, 1950, Exhibit B. For the period, 1st April, 1950, to 31st January, 1951, the respondent paid a sum of Rs. 845 4 0 as tax. Assessment proceedings were also started by the appellant in respect of certain forward contracts relating to gur and peas. The respondent challenged the legality of these proceedings and of the assessment orders on the ground that the Act in so far as it imposed a tax on forward contracts was ultra vires the powers of the Provincial Legislature. The learned Judges agreed with this contention, and issued a writ of certiorari quashing the orders of assessment, Exhibits A and B, and a writ of prohibition in respect of the proceedings for assessment of tax on forward contracts in gur and peas. The matter now comes before us in appeal under a certificate of the ' High Court under article 133(1) of the Constitution. Under the Government of India Act, 1935, the Pro vincial Legislature derived its power to impose a tax on the sale of goods under entry 48 in List 11 of the Seventh Schedule, and the Uttar Pradesh Sales Tax Act, XV of 1948, was enacted in exercise of this power. Section 2(h) of the Act defines "sale" as follows : "Sale" means within its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration and includes forward contracts but does not include a mortgage, hypothecation, charge or pledge. " It is the extended definition of sale as including forward contracts in this section that is relied on as conferring authority on the appellant to make the orders in Exhibits A and B. The point for decision in this appeal is whether the power to impose a tax on the sale of goods under entry 48 includes a power to impose a tax on forward contracts. 245 Under the statute law of India which is based on English law on the subject, a sale of goods and an agreement for the sale of goods are treated as two distinct and separate matters. Section 4 of the Indian Sale of Goods Act (Act III of 1930), runs as follows: (1) "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " It will be noticed that though the section groups both sales and agreements to sell under the single generic name of "contracts of sale" following in this respect the scheme of the English Sale of Goods Act, 1893, it treats them as separate categories, the vital point of distinction between them being that whereas in a sale there is a transfer of property in the goods from the seller to the buyer, there is none in an agreement to sell. When the contract is to sell future goods, and under section 6(3)of the Sale of Goods Act even if "the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods", there can be no transfer 'of title to the goods until they actually ' come into existence ; and even then, the conditions laid down in section 23 of the Act should be satisfied before the property in the goods can pass. That was also the law under the repealed provisions in Chapter VII of the Indian Contract. Act, 1872. Section 77 of the Contract Act defined "sale" as follows: "Sale" is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer. " 246 Section 79 enacted that, "Where there is a contract for the sale of a thing which has yet to be ascertained, made or finished, the ownership of the thing is not transferred to the buyer, until it is ascertained, made or finished. " The corresponding provisions of the English Act are sections 1, 16 and rule 5 of section 18. Section I is as follows: (1)"A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another. (2)A contract of sale may be absolute or conditional. (3)Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4)An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " Section 16 enacts that, "Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. " Section 18, rule 5, provides for the passing of property is future goods after they are ascertained. The distinction between a sale and an agreement to sell under section 1 of the English Act is thus stated by Benjamin on Sale, Eighth Edition, 1950: "In order to constitute a sale there must be (1)An agreement to sell, by which alone the property does not pass; and (2) an actual sale, by which the property passes. It will be observed that the definition of a contract of sale, above cited includes a mere agreement to sell as well as an actual sale. " 247 This distinction between sales and agreements to sell based upon the passing of the property in the goods is of great importance in determining the rights of parties under a contract. The position is thus stated in Halsbury 's Laws of England, Volume 29, page 15, paragraph 13: "An agreement to sell, or, as it is often stated, an executory contract of sale, is a contract pure and simple, whereas a sale, or, as it is called for distinction, an executed contract of sale, is a contract plus a conveyance. Thus, by an agreement to sell a mere jus in personam is created, by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default in payment, the seller may sue for the contract price, but where an agreement to buy is broken, usually the seller 's only remedy is an action for unliquidated damages. Similarly, if an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are the property of the seller and he can dispose of them. They may be taken in execution for his debts, and if he becomes bankrupt they pass to his trustee in bankruptcy. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods them selves, such as the actions for conversion and detinue. Again, if there be an agreement for sale and the goods perish, the loss as a rule falls on the seller, while if there has been a sale the loss as a rule falls upon the buyer. " Thus, there having existed at the time of the enactment of the Government of India Act, 1935, a welldefined and well established distinction between a sale and an agreement to sell it would be proper to interpret the expression sale of goods" in entry 48 in the sense in which it was used in legislation both in England and India and to hold that it authorises the imposition of a tax only when there is a completed sale involving transfer of title. This conclusion is further strengthened, when regard is hood to the nature of the levy, Section 3 of the, Act 248 provides for a tax being imposed at three pies in the rupee on the turnover of the assessee, and "turnover" is defined in section 2 (i) as "the aggregate of the proceeds of sale by a dealer", and that would consist of the price and any charges paid at the time of the delivery of the goods, as provided in Explanation I. The substance of the matter is that the sales tax is a levy on the price of the goods, and the reason of the thing requires that such a levy should not be made, unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell, then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods. The law was thus stated in Colley vs Overseas Exporters(1): In former days an action for the price of goods would only lie upon one or other of two counts. First, upon the indebitatus count for goods sold and delivered, which was pleaded as follows: 'Money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendants ': Bullen and Leake, Precedents of Pleading, 3rd ed., p. 38. This count would not lie before delivery: Boulter vs Arnott(2). The count was applicable when upon a sale of goods the property has passed and the goods had been delivered to the purchaser and the price was payable at the time of the action brought. Secondly, upon the indebitatus count for goods bargained and sold, which was pleaded as follows: Money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant ': Bullen and Leake, p. 39. This count was applicable where upon a sale of 'goods the property had passed to the purchaser and the contract had been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment. If the property had not passed the count would not lie: Atkinson vs Bell(3). In my view the law as to the (1) at 309 310, (2) (1833) 1 Cr, & M. 333. (3) ; , 249 circumstances under which an action will lie for the price of goods has not been changed by the Sale of Goods Act, 1893. " That is also the law in this country under section 55 of the Sale of Goods Act. The only exception to this rule is when, under an agreement between the parties, the price is payable on a day certain irrespective of delivery, and that is not material for the purpose of the present discussion. The position therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell, which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as sale price. The power conferred under entry 48 to impose a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods, and not when there is a mere agreement to sell. The State Legislature cannot, by enlarging the definition of " sale " as including forward contracts, arrogate to itself a power which is not conferred upon it by the Constitution Act, and the definition of "sale" in section 2(h) of Act XV of 1948 must, to that extent, be declared ultra vires. For the same reason, Explanation III to section 2(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon for delivery", and section 3 B which enacts that, "Notwithstanding anything contained in section 3, the turnover of any dealer in respect of transactions of forward contracts, in which goods are not actually delivered, shall be taxed at a rate not exceeding rupees two per unit as may be prescribed " must also be held to be ultra vires. In the result, the decision of the High Court must be affirmed and this appeal dismissed with costs.

Held, that there is a well defined and well established distinction between a sale and an agreement to sell. The words "Taxes on the sale of goods" in entry No. 48, List II, Schedule VII of the Government of India Act, 1935, confer power on the Provincial Legislature to impose a tax only when there has been a completed sale and not when there is only an agreement to sell. Accordingly section 2(b) of the Uttar Pradesh Sales Tax Act, XV of 1948, enlarging the definition of "sale" so as to include forward contracts must, to that extent, be declared ultra vires. For the same reason Explanation III to section 2(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon for delivery" and section 3B of the Act must also be held to be ultra vires. Colley vs Overseas Exporters ([1921] 3 K. B. 302 at 309, 310 referred to.

il Appeal No. 212 of 1975. (Appeal by Special Leave from the Judgment and Order dated 26 6 1974 of the Kerala High Court in A.S. No. 510/72). L.N. Sinha, Sol. of India, Shaymla Pappu and Girish Chandra for the appellant. A.S. Nambiar for the respondent. The Judgment of the Court was delivered by BEG, J. The Union of India and the Commander, Officer incharge, Naval Base, Cochin, are the appellants before us by grant of special leave against a judgment and decree of a Division Bench of the High Court of Kerala. The Division Bench had affirmed the decision of a learned subordinate Judge awarding Rs. 25,000/ as damages, together with inter est @ 6% per annum, to the plaintiff respondent for the illegal termination of the respondent 's services. The plaintiff respondent was serving as a Welder, Grade II, in the Civilian Defence Forces at the Naval Base, Cochin, at the time of this allegedly illegal termination of service by an order of 25th October, 1968, of the Govt. of India, Ministry of Defence. Special leave was granted on condition that the appel lants Will bear the costs of the respondent in any event. The point of law sought to be canvassed before us is: Does the doctrine that a Central Govt. servant holds his post "at the pleasure of the President", contained in Article 310 of the Constitution, authorise the passing of an order of termination of services, without assigning any reason what soever, of the holder of a post "connected with defence ?" There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of pun ishment for any wrong done by him or for incompetence, although, a perusal of the pleadings would show that the appellants denied the assertions of the plaintiff respondent that he was efficient and entitled to promotions as he had qualified for them by passing certain tests. The Subordinate Judge had awarded only Rs. 25,000 . out of a claim of Rs. 75,000/ made on the ground that, but for illegal termination of the service of the plaintiff respond ent, the plaintiff would have continued in service upto the age of 60 years and duty promoted instead of being thrown out of service at the age of 41. The plaintiff respondent alleged that the termination of his service, without giving any reason whatsoever, was contrary to, rules made under Article 309. A glance at paragraph 4 of the plaint shows that the violation of rules 89 relating to conduct of disciplinary proceedings was alleged by the petitioner. In paragraph 5 of the plaint, however, he alleged: "As per the terms of appointment and the rules governing the service of the petitioner,, he is entitled normally to continue in service till the age of 60. If his service had not been terminated as per the impugned order, the petitioner would have been entitled to continue for a further period of 19 years and 8 months". He proceeded to assert: "Due to the illegal termination, the peti tioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereun der namely a right to continue in service for the full period of 19 years and 8 months and thus to gain a livelihood for himself and his family". A perusal of the judgment of the Division Bench shows that the only point really considered by it was whether the pleasure of the President mentioned in Article 310 of the Constitution, can over ride rules made under Article 309 of the Constitution. The High Court had explained away a passage cited from State of U.P. & Ors., vs Babu Ram Upadhya(1) by observing that it did not support the argument that rules made under Article 309 of the Constitution did not control the pleasure of the President, under Article.310, which was to be subject to matters otherwise expressly provided in the Constitution. The passage so explained away runs follows :. "If there is a specific provlsion in some part of the Constitution giving to a Government servant a tenure different from that provided for in article 310, that Government servant is excluded from the operation of article 310. The said words refer, inter alia,, to articles 124, 148, 218 and 324 which provide that the Judges of the Supreme. Court, the Auditor General, the Judges of the High Courts and the Chief Election Commissioner shall not be re moved from their offices except in the manner laid down in those Articles. If the provisions of the Constitution specifically prescribing different tenures were excluded from article 310, the purpose of that clause would be exhausted and thereafter the Article would be free from any other restrictive operation. In that event, article 309 and 310 should be read together, excluding the opening words in the latter Article, namely, "Except as expressly provided by this Constitution". Learned Counsel seeks to confine the operation of the opening words in article 309 to the provisions of the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants:, namely articles 146(2), 148(5) and 229(2). That may:be so, but there is no reason why article 310. should (1) A.I.R. 1961 S.C. 751. 8 1003 SCI/76 90 be excluded therefrom. It follows that while article 310 provided for a tenure at pleasure of the President or the Governor, article 309 enables the legislature or the executive, as the case may be, to make any law or rule in regard, inter alia, to conditions of service without impinging upon the overriding power recognised under article 310". The Kerala High Court relied on Union of India vs J. N. Sinha & Anr.,(1) to hold that doctrine of office held at the pleasure of the President was subject to rules made under Article 309 of the Constitution, and pointed out that it was held, inter alia, by a Division Bench of this Court (at p. 42): "A Government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Consti tution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art.311 ". The High Court also relied on State of Madhya Pradesh & Ors. vs Shardul Singh,(2) where the same Division Bench of this Court had held inter alia (at p. 111 ): "Article 310(1) of the Constitution declares that every person who is a member of Civil service of a State or holds any civil post in a State holds office during the pleasure of the Governor of a State. But the pleasure doctrine embodied therein is subject to the other provisions in the Constitu tion. Two other Articles in the Constitution which cut down the width of the power given under Article 310 (1) are Articles 309 and 311. Article 309 provides that subject to the provisions of the Constitution acts of the appropriate Legislature may regulate the, recruitment, and conditions of service of persons appointed, to public. services and posts in connection with the affairs of the Union or of any State. Proviso to that Article says: 'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the: case of services and posts in connection with the af fairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act ." The High Court then referred to N. Ramanatha Pillai vs State of Kerala & Anr. ,(3) a decision of 5 learned Judges of this Court, in which Ray CJ., speaking for the Constitution Bench of this Court, (1) A.I.R. 1971 S.C. 40. (2) at 111. (3) ; at 2645. 91 while considering the power of the Govt. to create, continue, and abolish a post said (at p. 2645): "Article 309 provides that subject to the. provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruit ment and conditions of service of persons appoint ed, to public services and posts in connection with the affairs of the Union or of any State. There fore, Acts in respect of terms and conditions of service of persons are contemplated. Such Acts of Legislature must however be subject to the provi sions of the Constitution. This attracts Article 310 (1). The proviso to article 309 makes it compe tent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in con nection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed,, to such services and posts under the Union and the State. These Rules and the exercise of power conferred on the delegate: must be subject to Article 310. The result is. that Article 309 cannot impair or affect the pleasure of the ' President or the Gover nor therein specified. Article 309 is, there fore, to be. read subject to Article 310". The High Court, after citing the passage set out above, said: "We do not understand the above passage as suggesting that Article 310 cannot in any manner be controlled by Rules framed under Article 309". After a consideration of decisions of this Court in this manner it expressed its views as follows: "These cases, we think, sufficiently indicate that while it may be open to the PreSident or to the Governor to dismiss a civil servant at pleas ure, if Rules have been framed under Article 309 of the Constitution to regulate the mode and manner of termination of service, these .have to be com plied with. This, we think, is reasonable and understandable enough on first principles. If the untrammelled pleasure of the President has been subjected to Rules framed by the President himself in regard to the manner of termination of service, the pleasure must be subject to such Rules". The Division Benh of the High Court then re corded its conclusion: "We are therefore of the opinion that in the instant case, the Civil Services (Classification, Control and Appeal) Rules, having been framed under Article 309 of the Constitution, the same had to be followed before the respondent 's service was terminated. The same not having been admittedly complied with, the finding of the ' Court below that the termination is illegal was correct and requires no interference. No arguments were addressed on the quantum of damages awarded". 92 We do not think that the difficulty before the High Court could be resolved by it by following what it consid ered to be the view of a Division Bench of this .Court in two cases and by merely quoting the views expressed by larger benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that in each of the cases cited before the High Court, observations of this Court occur in a con text different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court That is the practice followed by this Court itself. The practice has now crystallized into a rule of law de clared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view. we have perused the Central Civil Service (Classifica tion, Control and Appeal) Rules of 1965, (hereinafter re ferred to as '1955 Rules ') which deal principally with procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. There is no rule there dealing with the conditions under which a service such as that of the plaintiff respondent may be terminated. We fail to see any rule made under Article 309 of the Constitution which was violated by the impugned order of termination of service of the plaintiff respondent. We do not consider ourselves called upon to. decide a ques tion which has really not arisen in the case. before us. The 1965 Rules are applicable when disciplinary proceed ings are taken. They do not make disciplinary proceedings under the rules incumbent or obligatory whenever the services of a person covered ' by these rules are terminated. The obligation to follow the procedure for punishment laid down in the rules flows from the provisions of Article 311 of the Constitution. And, as the opening words of Arti cle 310 show, the doctrine of office held at the pleasure of the ' President does not apply to cases covered by Article 311. Rule 3 of the above mentioned rules begins. as follows: "3. Application. (l ) These rules shall apply to every Government servant including every civilian Government servant in the Defence Serv ices, but shall not apply to (a) any railway servant, as defined in rule 102 of volume I of the Indian Railway Establishment Code, (b) any member of the All India Services, (c) any person in casual employment, (c) any person in casual employment, (d) any person subject to discharge from service on less than one month 's notice. (e) any person for whom special provision is made, in respect of matters covered by these rules, by or under 93 any law for the time being in force or by or under any agreement entered into by or with the, previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions; (2) Notwithstanding anything contained in sub rule (1), the President may by order exclude any class of Government servants from the operation of all or any of these rules. (3) Notwithstanding anything contained in sub rule (1), or the Indian Railway Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within exception (a) or (e) in sub rule (1 ), to whom, but for such transfer, these rules would apply. (4) If any doubt arises (a) whether these rules or any of them apply to any person, or (b) whether any person to whom these rules apply belongs to a particular service the matter shall be referred to the President, who shall decide the same". Even if the parties were governed by these rules, because the plaintiff held a civil post in one of the Defence; Departments, yet there must be some violation of one of these rules, which were no doubt framed under Article 309 read with clause 5 of Article 148 of the Constitution, before any question of a conflict between a rule framed under Article 309 and the provisions of Article 310 could possibly arise. We fail to see such a conflict here. These rules merely lay down procedure for matters cov ered by Article 31 l of the Constitution. There is no doubt that proceedings under Article 311 of the Constitution constitute an exception to the doctrine of pleasure con tained in Article 310 of the Constitution. But, in the case before us, no question of any disciplinary proceedings has been discussed because it did not arise at all. There is no finding that any punishment was imposed upon the plaintiff respondent. It may be that mere termination of service, when the plaintiff.respondent was holding a perma nent post and entitled to continue in service until 60 years of age, may constitute punishment per seven when the termination of service is not meant as a punishment. But, in that event,, there had to be a finding on the rule or order under which the plaintiff was entitled to continue in serv ice. until he reached the age of 60 years. The High Court had cited no rule made under. Article 309 to show that there was any such provision. In P.L. Dhingra vs Union of India(1) Das, CJ., speaking for the majority of a Bench of five judges of this Court, said (at p. 47): "It has already been said that where a person is appointed substantively to a permanent post in Government service. (1) ; at 47. 94 he normally acquires a right to hold the post until under the rules, he attains the age of superannua tion or is compulsorily retired and in the absence of a contract, express or implied, or a service rule,. he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or. other disqualifications and appropriate proceedings are taken under the service rules read with article 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant 's rights and brings about a premature end of his employ ment". The propositions laid down in Dhingra 's case (supra) by this, Court mean that, unless a legally justifiable ground is made out for the termination of the service of a Govern ment servant. in permanent service, in the sense that he is entitled to remain in service until he ' reaches the age of retirement, he could be deemed in a given case to be pun ished by an apparently innocent order of termination of service. If, however, the respondent belonged to a class of government servants the tenure or conditions of whose serv ice was subject to the over riding and unqualified sway of the power to terminate his services at will, by reason of Article 310(1) of the Constitution, we doubt whether he could claim to be a "permanent" servant, who could continue, as of right, in service until he reaches the age of super annuation. At any rate, he could not be a "permanent" Government servant of the same class as one protected by Article 311. Even if we were to hold that the plaintiff respondent was constructively punished, the provisions of Article 311, unfortunately, do not apply to such a Government servant as the respondent was. Whereas the power contained in Article 310 governs all Government servants, including those in the services connected with defence, the benefits of Article 311, which impose limitations on the exercise of this power in cases of punishment, do not extend to those who hold posts "connected with defence". Constitution Bench of this Court has held, after a review of relevant authorities, this to be the position of the. holder of a post such as that of the plaintiff respondent in L. R: Khurana vs Union of India. (1) As the plaintiff respondent was not entitled to the protection of Article 311, the only effect of the 1965 Rules upon his case is that they could be applied if disci plinary proceedings had been taken against him as the holder of a post "connected with defence". In other eases of such servants,. where no such disciplinary proceedings are instituted (and none were started against the plaintiff respondent), the 1965 Rules, governing procedure for. punishments to be imposed, will not apply at all. There is no legal obligation to apply those rules here. The legal obligation to apply them to every case of punish ment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khurana 's case (supra). (1) ; 95 We were asked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these .Articles could not be in voked against a discrimination made by Constitutional provi sions, no such case was set up earlier. We cannot permit it at this stage. The only ground on which the respondent had assailed the order of termination of his service was non compliance of 1965 Rules, which meant ' that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed. Consequently, we allow this appeal, set aside the judgment and decree of the High Court and ,dismiss the plaintiff 's suit. But: in the circumstances of the case, the appellant will, in keeping with the undertaking given at the time of grant of special leave, bear the costs of both sides throughout. Appeal allowed.

Respondent was a welder in the Civilian Defence Forces. On his services being terminated, without stating any rea son, he filed a suit for damages for illegal termination on the basis that he would have continued in service upto the age of 60 instead of being thrown out at the age of 41. The trial Court gave a decree for damages which was affirmed by the High Court on the ground. that the doctrine of post held during the pleasure of the President, contained in article 310, does not authorise the termination without complying with the procedure prescribed by the Central Civil Service 's (Classification, Control and Appeal) Rules, 1965, framed under article 309. Allowing the appeal to this Court, HELD: (1) The Rules deal principally with the procedure for disciplinary proceedings and penalties and appeals and reviews against orders passed under the rules. They are applicable if disciplinary proceedings had been taken against the respondent, but they do not make disciplinary proceedings incumbent or obligatory whenever the services of a person are terminated. In the present case there were no disciplinary proceedings against the respondent. [92 D E] (2) The mere termination of the service. by an apparent ly innocent order, of a Government servant in permanent service, in the sense that he is entitled to remain in service until he reaches the age of retirement, could be deemed, in a given case, to be a punishment. But, in that event, there had to be a finding on the rule or order under which the respondent was entitled to continue in service until he reached the age of 60. There is no reference to any such rule and there was no finding that any punishment was imposed upon him or that his services were terminated as a measure of punishment for any wrong done by him or for incompetence. [94 C; 93 G] P.L. Dhingra vs Union of India ; @ 47 referred to. (3) Even assuming that the respondent was constructive ly punished, there is no legal obligation to apply the Rules. The legal obligation to apply them to every case of punishment, flows from the provisions of article 311 and is confined to holders of posts covered by article 311. But the provisions of article 311 do not apply to the respondent since they do not apply to the holder of a post connected with defence. [94 E] L.R. Khurana vs Union of India ; followed. (4) Terefore, when no disciplinary proceedings are instituted, the Rules will not at all apply, and there is no other rule dealing with the conditions under which the service, such as that of the respondent. may be terminated. Since there was no violation of any rule no question of a conflict between a rule framed under article 309 and the doc trine of pleasure contained in article 310, which applies to all Government servants including those in the services connected with defence, arises in the present case. [94 G] 88 (5) The High Court in dealing with the question consid ered the view of a Divisional Bench of this Court in two cases, merely quoted the views expressed by larger Benches of this Court, and then observed that these were insuffi cient for deciding the point before it. The High Court did not act correctly in thus skirting the views expressed by larger Benches of this Court. The proper course for the High Court was to try to find out and follow the opinions expressed by the larger Benches in preference to those expressed by smaller Benches. This practice is followed even by this Court and has crystallized into a rule of law. If, however, the High Court was of opinion that the views expressed by larger Benches of this Court were not applica ble to the facts of the present case it should have said so, giving reasons in support. [92 A C]

Appeal No. 2172 of 1968. Appeal from the judgment and order dated August 10, 1967 of the Delhi High Court in Letters Patent Appeal No. 97 D of 1965. Frank Anthony, K. B. Rohatgi and P. Parameswara Rao, for the appellant. Jagadish Swarup, Solicitor General of India and section P. Nayar. for the respondent. 451 The Judgment of the Court was delivered by Beg, J. This is an appeal by grant of a Certificate of the Delhi High Court under Article 132 read with Article 133(1)(b) and (c) of the Constitution. The Appellant had filed a petition under Article 226 of the Constitution for quashing an order dated 10 3 1960 and had prayed for a consequential order also in the nature of a mandamus. Information of the impugned order (Annexure 'C ' to the petition), given to the petitioner, reads as follows "The Union Public Service Commission have in pursuance of Rule 5 of the Central Information Service Rules, 1959, recommended Shri P. B. Roy, at present officiating as Editor in the Publications Division, for appointment, in a substantive capacity, to Grade III of the service at its initial constitution. Shri Roy is informed that the President has been pleased to post him as an Assistant Editor in the Publications Division with immediate effect". Those relevant facts, preceding and following the impugned order, which are admitted by both sides may now be mentioned. In 1955, the post of Editor, Publications Division, in the Department of Information and Broadcasting of the Government of India (hereinafter referred to as ',the Department '), was advertised. The appellant, who had applied for the post, was selected by the Union Public Service Commission, and, on its recommendation, was offered a temporary post of Editor in the Publications Division of the Department on an initial salary of Rs. 720 per month in the scale of Rs. 720 40 1000 together with the usual allowances. The material terms and conditions of this employment were: (i) The post is to be gazetted Class I; (ii) The temporary post was sanctioned upto 28 2 1957 but was likely to continue; (iii) Shri Roy (the Appellant) will be governed by the Central Civil Services (Temporary Service Rules) and other Rules applicable to temporary Govt. servants of his category; (iv) He was to be on probation for 6 months which may be extended at the discretion of the appointing authority. The Appellant had reported for duty on 1st August, 1956, as directed. 'On 27 3 1957, the Appellant,s probation was extended 452 by three months. Immediately thereafter, on 28 3 57, the Appellant 's services were terminated under Rule 5 of the Central Civil Services (Temporary Service) Rules 1949, (Annexure 'D ' to the Rejoinder Affidavit of 20th February, 1964). On 5 3 1957, the Appellant made a representation against this termination of his service (Annexure 'B ' to the Rejoinder Affidavit). On 27 4 1957 in response to this representation, the above mentioned termination to the Appellants service was rescinded(Annexure 'F ' to the Re joinder Affidavit). On 28 4 1958, the President was pleased to terminate the probationary period of the. Appellant and permitted him to continue in his, post in a temporary capacity (Annexure 'B ' to the Affidavit supporting the Petition), On 16 2 1959, the President of India, in exercise of powers conferred by the Proviso to Article 309 of the Constitution of India, promulgated the Central Information Service Rules, 1959 (hereinafter referred to as the Rules), which came into force on 21 2 1959. These rules were meant for the creation of a Central Information Service with prescribed grades and their strengths. Entry into this service was open to "departmental candidates" by a procedure laid down in Rule5 for the initial constitution of the service. In accordance with this procedure, the Appellant was required to appear before a Selection Committee on a given date, and, after selection, he was posted by the impugned order as indicated above. On 11 31960, the Appellant assumed charge of the post thus assigned to him on the recommendation of the Union Public Service Commission. The Appellant then made a representation, dated 11 3 1960 (Annexure 'E ' to the Rejoinder Affidavit), against his appointment in Class II grade III post. He made other similar representations after that. His last representation was made on 25 8 1962. the Appellant received a communication dated 10 12 1962 forward ing extract of an order dated 26 11 1962 which said : "The representation from Shri P. B. Roy has been carefully considered in the Ministry. All relevant facts were fully taken into account, by the Departmental Promotion Committee, before drawing up the recent panel of Grade III officers considered suitable for promotion to Grade II. Shri Roy may be informed accordingly". The Appellant, treating this as the rejection of his last representation, filed his petition on 11 1 1963 which was allowed by a learned Judge of the Punjab High Court, sitting on the Circuit Bench at Delhi. A Letters ' Patent Appeal against this decision had been allowed by a Division Bench of the Delhi High Court which then granted a certificate on 12 8 1968 for leave to Appeal primarily because it held that the required test relating to valuation of the subject matter had been satisfied. 453 The learned Judge who had initially heard the petition had pointed out that the representation of the Appellant was first rejected on 29 7 1960 and that it did not matter that the petitioner had continued making subsequent representations. The learned Judge had noticed the explanation that the petitioner could not approach the Court as he was admitted to a Tuberculosis Clinic in June,. 1961. The learned Judge, having found that this was not sufficient to explain the delay between 29 7 1960 and June 1961 was disposed to reject the petition on the ground of laches. But, in view of the decision of the majority of the Full Bench of the Punjab High Court in section Gurmej Singh vs Election Tribunal, Gurdaspur(1), the delay in filing the petition was overlooked on the ground that, after the admission of a Writ Petition and hearing of arguments, the rule that delay may defeat the rights of a party is relaxed and need not be applied if his case is "positively good". The learned Single Judge had come to the conclusion, on the facts stated above, that the petitioner 's case would be governed by the decision of this Court in Moti Ram Deka & Ors. vs General Manager, North East Frontier Railway (2 ) , as the petitioner 's prospects and emoluments were adversely affected by the impugned order. The learned Judge thought that the mere fact that the Department was reorganized and that the petitioner was to be fitted into an appropriate category by the procedure laid down in Rule 5 did not take away the effect, that is to say, the loss of his emoluments, of the procedure to which the petitioner had been subjected. This view implied that article 311 of the Constitution was attracted by the case despite the above mentioned creation of the Central Information Service by the rules. The Division Bench which heard the Appeal of the Union of India was not inclined to interfere with the discretion of the learned Single Judge in rejecting the objection to the petition on the ground of delay. We too will not enter into this question which was not argued before us. The Division Bench, after reviewing facts ' leading to the absorption of the Appellant into a newly constituted Central Information Service, in accordance with the procedure laid down in Rule 5 mentioned above, held that the "News and Information Cadre" of the Department, in which the Appellant was initially appointed, had been superseded by the cadres and grades constituted by the rules of the new service. It overruled the contention of the Petitioner that the effect of the rules was merely to transfer employees in existing posts to corresponding posts with new designations. It held that the Rules did create an altogether new service. It pointed out that the process of entry into the new service was of (1) [1964] P.L.R. p. 589. (2) A.T.R. 1964 S.C. P. 600. 454 selection of each individual candidate after an examination of his individual record and qualifications by a Selection Committee be, fore which he appeared so that there could be no automatic fitting into some corresponding appropriate post of a predetermined class and grade. The rules and process for the constitution of the new service did not guarantee the class or grade or emoluments enjoyed by any candidate in a cadre in which he served prior to the setting up of the new service. It, therefore, held that no question of demotion or reduction in rank, without observing the procedure laid down in article 3 1 1 of the Constitution, arose at all in the instant case. Mr Anthony, appearing on behalf of the Appellant, has assailed the correctness of the decision of the Division Bench of the Delhi High Court on five grounds. We will take up and consider each of these seriatim. Firstly, it is contended that the Division Bench had erred in allowing an affidavit to be filed on 26 6 1967 before it, without affording an opportunity to the Appellant to repel its contents by filing a counter affidavit. It was urged that the result was that an altogether new case, neither argued before nor referred to by the learned Single Judge, had been allowed to be raised. This ground is no doubt mentioned among the grounds on which a certificate of the fitness for an appeal to this Court was sought. The Judgment of the Division Bench mentions that, in the course of arguments, the question arose whether the post of Editor in the Publications Division was abolished or had ceased to exist. It appears that an affidavit was then allowed to be filed before the Division. Bench on behalf of the Union. of India in which it was stated that two posts of Editors in the scale of Rs. 720 40 1000 in the Publications Division had ceased to exist as a consequence of the inclusion of two posts in the revised grade of Rs. 700 40 1100 50/2 1250 with effect from 1 7 1959 in the Central Information Service constituted from 1 3 1960. There is nothing in the Judgment or anywhere else to show that the petitioner had asked for any opportunity to controvert any statement made in the affidavit dated 26 7 1967 and had been denied that. The case and the contention on behalf of the Appellant have been that the new posts in the services are really old posts in a new garb. This raised what was primarily a question of law, depending for decision upon an interpretation of the relevant rules of which the Court takes judicial notice. The rules certainly did not provide for the continuance of any ex. cadre posts outside the new service introduced by the rules. Facts stated in the Affidavit of 26 7 1967 could have some bearing on the question whether there were two posts in the revised scale which could be considered as corresponding posts. They could, if they had 455 any effect on the respective stands, perhaps help the Appellant 's case that there was nothing more than a re designation of posts with same duties and corresponding scales. And, this seems to explain why there is nothing to show that the Petitioner Appellant asked for an opportunity to meet any allegation made in the affidavit of 26 7 1967 filed on behalf of the Union. Moreover, what the fresh affidavit contained about the dis appearance of the temporary post given to the Petitioner in 1956 before the Rules came into force flowed logically from the order of Petitioner 's initial appointment in a temporary post which was to continue only upto 28 2 1957, unless its life was shown to have been extended for some definite or indefinite period. The Petitioner had not averred anywhere that the post was continued beyond 28 2 1957 for any period by any order or rule. Indeed, the very argument advanced on behalf of the Appellant, that his initial post merged in another corresponding post, implied that the post to which he was initially appointed at least lost its identity or could not be deemed to continue without a transmutation. The question whether the constitution of the Central Information Service did or did not involve fresh appointments to new posts but was simply an automatic process of transmutation by the pooling together of existing incumbents of certain posts to form a new service, as the appellants alleged, was already the subject matter of assertion made in the Rejoinder Affidavit of the Petitioner and counter assertions in a reply filed to the Rejoinder on 2 4 1964. The affidavit of 24 6 1967 did not introduce anything new but only clarified the position still more. We find no force in the first objection. Secondly , it is contended that the impugned order constitutes. on the face of it, a reduction in rank of the petitioner Looking at the communication dated 10 3 1960, set out above, we find nothing ,there to indicate that the petitioner had been demoted as a measure of punishment. To hold, as it was suggested that we should, that the procedure laid down by Rule 5 was adopted as a cloak to cover up an intended reduction in rank and emoluments of an officiating Editor, by appointing him in a permanent substantive capacity of a grade, carrying lesser emoluments in the new service, would necessitate going behind the order 'of 10 3 1960. At any rate, on the face of it, the order discloses no such devious action against the Appellant. Thirdly, it was contended that the impugned order violates article 14 and 16 of the Constitution inasmuch as it places an employee who was serving as an Editor in a post of lower grade with less emoluments whereas no such result had followed in the case of any other employee in the Information and Broadcasting 456 Department. We are unable to see how an order which has the effect of terminating an officiating appointment, in which the petitioner had no right to continue, and which gives him a fresh appointment, with a different designation but permanent tenure and prospects, constitutes a violation of either article 14 or 16 of the Constitution simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other servant in the Department. Indeed, the Selection Committee had, apparently after taking into account the special features of the petitioners individual case, recommended the maximum pay, in the class and grade of the post given to him, and the petitioner got this exceptional pay. Even his prospects improved to the extent that from the precarious position of a temporary servant he had moved into a permanent service. It could not be definitely stated that his position had worsened on the whole. He was at least no longer subject to the hazards of temporary employment which could be terminated by a month 's notice at any time. The results of applying Rule 5 to the facts of individual cases could not be expected to be identically similar in all cases. All candidates were subjected to the same process or pro cedure contemplated by Rule 5. It is not the Appellant 's case that the Selection Committee did not function honestly or that its proceedings. were vitiated by any defect in its constitution or of any bias on its part or any unifairness or inequality of the test applied in judging the merits of the Appellant as against other candidates. The alleged defect with the material said to have been used by the Committee is another matter which we will consider last. Fourthly, it was urged that Rule 5 mentioned above is itself void for conflict with the provisions of Article 311 and 14 and 16 of the Constitution. It was urged that Rule 5 permits violation of article 311 of the Constitution inasmuch as it enables that to be done indirectly which could not be, done directly. The Rule reads as follows : 5. INITIAL CONSTITUTION OF THE SERVICE: (1) The Commission shall constitute a Selection Committee with the Chairman or a Member of the Commission as President and not more than three representatives of the Ministry of Information and Broadcasting as members, to determine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for the initial constitution of the service: 457 (2) On receipt of the Committee 's report the Commission shall forward its recommendations to the Government and such recommendations may include a recommendation that a person considered suitable for appointment to a grade may, if a sufficient number of vacancies are not available in that grade, be appointed to a lower grade; (3) Vacancies in any grade which remain unfilled after the appointment of departmental candidates selected under sub rules (1) and (2) above shall be filled by direct recruitment through the Commission. Rule 3 indicates that appointments to the newly created ' service could take place either by selection under Rule 5 or by direct recruitment with which we are not concerned here. The grades and the fixation of an authorized strength of each grade are provided for by Rule 4. Only posts in the first 3 grades are classified as Class I (Gazetted) posts.

The appellant was holding a temporary post of Editor in the Publications Division of the Department of Information and Broadcasting. The temporary post was sanctioned upto 28 2 1957. On 16 2 1959, the President of India, in exercise of the powers conferred by the proviso to article 309 of the Constitution, promulgated the Central Information Service Rules, 1959. These Rules were meant for the creation of a Central Information Service with prescribed grades and strengths, and entry into the service was open to departmental candidates according to r. 5 for the initial constitution of the service. The appellant was chosen by the Selection Committee and was posted as an Assistant Editor. He challenged the order. A single Judge of the High Court allowed the petition. On appeal, in the course of arguments, the question arose whether the post of Editor was abolished or had ceased to exist and the respondent was allowed to file an affidavit stating that the post of Editor had ceased to exist. The Division Bench then held that there was no question of demotion or reduction in rank and hence that article 31 1 was not applicable. In appeal to this Court, it was held (1) The additional affidavit filed by the respondent did not introduce anything new but only clarified the position. [455 E] (a) There was nothing to show that the temporary post of Editor in which the appellant was initially appointed had been continued beyond 28 2 1957 for any period. [455 C] (b) The question whether the constitution of the Central Information Service involved fresh appointments to new posts or its effect was merely to transfer existing employees to corresponding posts with new designations was already before the court. [455 D E] (c) The appellant himself never asked for any opportunity to meet any allegation in the additional affidavit. [454 F G] (2) There is nothing to indicate that on the face of the impugned order, that the appellant had been demoted as a measure of punishment. [455 F G] (3) it could not be held that the order, which had the effect of terminating an officiating appointment in which the appellant had no right to continue and which gave him a fresh appointment with a different designation, 'out permanent tenure and prospects, constituted a 450 violation of either article 14 or 16, simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other person in the Department; especially when, after taking into account the appellant 's individual case, the Selection Com mittee recommended the maximum pay in the class and grade of the post given to him. [456 A C] (4) (a) The new rules had the effect of constituting a new service with a fair and reasonable procedure for entry into it. , Such a procedure could not be characterized as a device to defeat the provisions of article 311 or a fraud upon the Constitution simply because the result of subjection to the process of appraisement of the merits of each candidate may not meet the expectations of some candidates. [457 F G] (b) Article 311 afford , a reasonable opportunity to defend against threatened punishment to those already in Government service. Rule 5 of the Central Information Service Rules provides a method of recruitment or entry into a new service of persons who, even though they may have been serving the Government had no right to enter the newly constituted service before going through the procedure prescribed by the rule. The fields of operation of article 311 and r. 5 are quite different and distinct. [457 G H; 458 A B] (c) The definition of 'departmental candidates ' in r. 2(b) was meant only as an aid in interpreting r. 5 and was not intended to operate as a fetter on the functions and powers of the Selection Committee. It does not require that all persons falling within the definition of 'departmental candidate ' should be placed in a single class, Under r. 5 the Selection Committee could assign different grades to the departmental candidates. The post actually held by the appellant before his selection for appointment to the newly constituted service did not automatically or wholly determine the position of a departmental candidate who offered himself to the process of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts. That Committee was presided over by the Chairman or a Member of the Union Public Service Cornmission and had officials of the Department on it who were in a position to correctly evaluate the appellant 's merit 's and the weight to be attached to his confidential records. [459 B H] (5) The appellant 's allegations of mala fides and that he was the victim of the prejudice and machinations of an (unnamed) officer in the Transport Ministry, could not properly be tried in writ proceedings and without impleading that official. [460 F G]

Appeal No. 1898 of 1967. Appeal by Special Leave from the Judgment and Order dated the 4th November, 1965 of the Allahabad High Court in Civil Miscellaneous Petition No. 2491 of 1965. Bishan Narain and D. N. Mishra, for the appellant. section N. Prasad and section P. Nayar, for respondents Nos. 1 & 2. The Judgment of the Court were delivered by SARKARIA J. This appeal by special leave is directed against the order dated November 4, 1965, of the High Court of Judicature at Allahabad dismissing the appellant 's writ petition under Article 226 and 227 of the Constitution in limine. The appellant was a Guard 'C ' Grade in Northern Railway. He was confirmed in that post in 1952. On April 3, 1955, an incident took place at Railway Station, Kalka, as a result of which, he was prosecuted for an offence under section 509, Penal Code. The Additional 180 District Magistrate, Ambala convicted and sentenced him on December 29, 1955 to three months simple imprisonment. His appeal was dismissed by the Court of Session. In Revision, the High Court of Punjab, on March 5, 1956, maintained his conviction but reduced the sentence. On April 2, 1956, the appellant received a communication from the Divisional Personnel Officer, Northern Railway that he had been dismissed by the Divisional Superintendent from service w.e.f. March 31, 1956. In Appeal by special leave, this Court, set aside the conviction ,of the appellant and acquitted him by its judgment dated March 7, 1957. Thereafter, the appellant filed a writ petition in the High Court of Punjab under Article 226 of the Constitution impugning the order The High Court by its judgment, dated of his dismissal. September 2, 1958, issued the, writ directing the respondents to treat the dismissal of the appellant wholly void and ineffective. Pursuant to that direction, on December 26, 1958 the appellant received a letter from the Divisional Personnel Officer that he had been reinstated to the post of Guard 'C ' Grade and that the matter of his back wages for the period between the date of his. dismissal and the date of reinstatement would be decided later on. By another letter of February 13, 1959, the same officer informed the appellant that the period from the date, of his dismissal to the date of his reinstatement would be treated as leave due. The appellant, on March 11, 1959, was paid Rs. 81.51 as his entire wages for the period ending March 7, 1959. On August 13, 1959, the appellant made an application under section 15(2) of the (Act 4 of 1936) (here inafter referred to a$ the Act) before the prescribed authority claim in , a sum of Rs. 9015.60 plus 10 times of, the said amount as compensation from the respondents. In addition, Traveling Allowance was claimed. Later, an attempt was made to amend the application and replace 'Traveling Allowance ' by 'Running Allowance '. The Authority did not permit the appellant to do so as he had failed to amend in time despite the order of the Court. The respondents resisted the appellant 's claim on various grounds including that of limitation. By an order dated August 7, 1963, the Authority directed respondent No. 1 (Union of India), in its capacity as employer, to refund the sum of Rs. 4863.20, (plus Rs. 100/ as costs) to the appellant holding that the same had been illegally deducted from his wages. The Authority disallowed the remaining claim including that of the Running Allowance. Against the order of the Authority, two appeals were carried to the Appellate Authority (Additional District Judge) One by the appellant and the other by the respondents. The Appellate Authority held that the appellant 's claim was barred by time as limitation had commenced from the date of dismissal from service and not from the date of reinstatement or the date on which it was decided to treat the period of dismissal as leave due. It upheld the dismissal of the appellant 's claim to the Running Allowance, inter alia for the reason that he had, despite the order of the 181 Authority, failed to amend the petition within the period indicated in 0.6, R.18 of the Code of Civil Procedure. The Appellate Authority further found that the Railway Administration was competent to treat the period of appellant 's inactive service from April 1, 1956 to February 17, 1959, as leave due and to deduct his wages for that period in accordance with rule 2044 of the Railway Establishment Code; and in view of section 7 (2) (h) of the Act, no refund of the deducted wages could be allowed. It further held that in the case of Railway Administration, the Divisional Superintendent named as Pay Master was res ponsible for the payment of wages of the Railway employees, and consequently, the direction of the Authority requiring the Union of India to make payment to the claimant was illegal. In the result, the Appellate Authority allowed the respondent 's appeal and dismissed the appellant 's claim. The appellant 's writ petition impugning this order of the Appellate Authority was, as already stated, dismissed by the High Court. Hence this appeal. The first question that falls to be considered is, whether the claim application filed by the appellant under section 15(2) of the Act was time barred? Mr. Bishan Narain, learned Counsel for the appellant contends that the case falls under the first part of the proviso (1) to section 15(2) which relates to deduction of wages and limitation would start from March 11, 1959 when the wages for the period of the appellant 's inactive service were actually deducted and he was paid Rs. 81.51 only for the entire period ending March 7, 1959. , Even on a stricter view, according to the learned Counsel, limitation would not start earlier than the date, February 13, 1959, when constructive deduction took place and it was decided to treat the period of his inactive service as leave due (which meant leave without pay). Since the appellant 's claim application had been presented within six months of either of these dates, it was well within time. Learned Counsel for the respondents does not dispute that this is a case of deduction of wages. His argument, however, is that irrespective of whether the case was one of deduction or of non payment of wages, the starting point of limitation would be the same viz., the date on which the wages fell due or accrued. The argument is that the concepts of 'deducted wages ' and . 'delayed wages ' are so integrated with each other that the events relatable to them always synchronise furnishing the same cause of action and the same start of limitation. It is pointed out that the wages of a Railway employee fall due every month; wages of one month being payable by the 10th of the succeeding month. Since the dismissal of the Appellant was declared void and non est by the Punjab High Court it is urged his right to claim wages continued to accrue every month even during the period of Ills dismissal. In the view propounded by the learned Counsel, limitation for making the application under section 1 5 (2) started from January 3, 1956, the date of the dismissal and the application made by the appellant 182 more than three years thereafter, was clearly time barred. Reference has been made to this Court 's decision in Jai Chand Sawhney vs Union of India(1). We shall presently see that while the contentions of the learned Counsel for the respondents cannot, those canvassed by the learned Counsel for the appellant must prevail. The material part of section 15 of the Act reads "15(1) 15(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub section (1) may apply to such authority for a direction under sub section (3) Provided that every such application shall be presented within (twelve months) from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be: Provided further that any application may be admitted after the said period of twelve months when die applicant satisfies the authority that he had sufficient cause for not making the application within such period. 15(3) When any application under sub section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3, or give them an opportunity of being heard, and, after such further inquiry ' (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding twenty five rupees in the latter, and even if the amount deducted or the delayed wages are paid before the disposal of the application direct the payment of such compensation, as the authority, may think fit, not exceeding twenty five rupees :. The question of limitation turns on an interpretation of the first proviso to sub section (2) of section 15. This proviso ex facie indicates two 1. 183 alternative termini a quo for limitation, namely : (i) the date on which deduction from wages was made, or, (ii) the date, on which the payment of the wages was due to be made. From a reading of section 15, it is clear that the legislature has deliberately used, first, in sub section (2), and then in sub section (3) the expressions "deduction of wages" and "delay in payment of wages" as two distinct concepts. Terminus a quo (i) in the proviso expressly relates to the deduction of wages, while (ii) is referable to the delayed wages. if both these terminii were always relatable to the same point of time, then there would be no point in mentioning terminus a quo (i), and the, Legislature could have simply said that limitation for a claim under section 15(2) would always start from the date on which the wages "fall due" or "accrue" as has been done under article 102 of the Limitation Act which applies only to suits for recovery of wages. The very fact that two distinct starting points of limitation referable to two distinct concepts, have been stated in the proviso, shows that the Legislature had visualised that the date of deduction of wages and the due date of delayed wages, may not always coincide. Conjunction "or", which in the context means "either", and the phrase "as the case may be" at the end of the Proviso are clinching indicia of this interpretation. They are not mere suplusages and must be given their full effect. The Legislature is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative, each maybe presumed to convey a separate and distinct meaning, the choice of either of which may involve the rejection of the other. To hold that the two expressions "wages deducted", and "wages delayed", though used in the alternative, carry the same meaning, and in the Proviso are always referable to one and the same ' point of time, would be contrary to this primary canon of interpretation "Deduction from wages" has not been defined in the Act. Some illustrations of such deductions are, however, to be found in sections 7 and 13. One of them in section 7 (2) (b) is "deductions for absence from duty" which indicates that such deduction can be a total deduction, also. That is to say "deduction from wages" may be 'the same thing as "deduction of wages". The deduction in the instant case is akin to this category covering the entire deficiency for the period of absence, the only difference being that here, the appellant absence from duty was involuntary. Such absence in official parlance is euphemistically called "in active service ', if the employee is later on reinstated. The point to be considered further is when did such deduction ofwages take place ? Ordinarily in a case like the present where the employee was dismissed on one date and reinstated on a later date, the deduction of wages may synchronise with the act of reinstatement. But on the peculiar and admitted facts of this case, the deduction did not take place on the date of reinstatement (26 12 1958) because the order of reinstatement expressly stated that "decision with regard to his wages to be paid for that period will be taken later on". In the case in hand, therefore, the "deduction ' will coincide with the decision impliedly or expressly deducting the wages. Such a decision was taken 184 and put in the course of a communication to the appellant on February 18, 1959 whereby he was informed that the period from 3 1 1956 to 17 3 1959, would be treated as 'leave due ' Which, it is conceded, meant leave without pay. Thus, deduction from his wages for the entire period of his 'inactive service ' took place on February 18, 1959. and limitation under the first part of the Proviso commenced from that date. The application was made on August 13, 1959, within six months of that date and was thus within time. in Jai Chand Sawhney 's case (supra), the, interpretation of the first Proviso to section 15(2) never came up for consideration. Therein, the Court was concerned only with the construction of the expression "accrue/due" in article 102 of the Limitation Act, 1908 which does not govern applications under section 15(2) of the Act. That case, therefore, is of no assistance in determining the precise issue before us. It may be observed in passing that the, rule in Sheo Prasad vs Additional District Judge,(1) relied on by the Additional District Judge, was not followed by the same High Court in Ram Kishore Sharma vs Additional District Judge Saharanpur(2), as is had ceased to be good law in view _of the decision of this Court in Divisional Superintendent, Northern Railway vs Pushkar Dutt Sharma(3). In Pushkar Dutt 's case (supra), the application under section 15 (2) of the Act was filed within six months of the date on which the dismissal of the employee was set aside by the court in second appeal. The employee 's application would have been within time irrespective of whether his case was treated as one of "wages deducted" or "wages delayed". Therefore, the necessity of examining the comparative mean ing and distinction between "deduction from wages" or "delay in payment of wages due" and the two alternative starting points of limitation relatable to these expressions, did not arise in that case. In the light of the above discussion, we reverse the finding of the Additional District Judge and hold that the application filed by the appellant under section 15(2) of the Act having been made within six months of the date of deduction from his wages, was within time. The second ground on which the order of the, Additional District Judge proceeds, is that since the deduction of the wages for the period of his inactive service from April 1, 1956 to February 17, 1959, had been made under the order of a co mpetent authority passed in accordance with rule 2044 of the Railway Establishment Code, in view of section 7 (2) (h) of the Act no order could be made for the refund of the deducted amount. Both the learned Counsel before us are agreed that in view of the pronouncement of this Court in Devendra Pratap Narain 'Rai; Sharma vs State of U.P.(4), this ground is not sustainable. In Sharma 's case (supra), this Court was construing rule 54 of the U.P. Government Fundamental Rules, the language of which is substantially the same as that of rule 2044 of the Railway Establishment Code. It (1) A.I.R. 1962 All. 144. (2) [1959] All Law Journal p. 225. (3) (4) [1962] Supp. S.C.R. 315. 185 was held therein, that r. 54 enables the State Government to fix the pay of a public servant when his dismissal is set aside in departmental appeal. But that rule has no application to cases in which dismissal is declared invalid by a decree of civil court and he is, in consequence, reinstated. Mr. Bishan Narain next contends that the prescribed Authority had wrongly disallowed the claim of the appellant to "Running Allowance ' which he had mis described as "Traveling Allowance" in his claim application. The point pressed into argument is, that once the Authority had allowed the appellant to amend his application for converting the claim of "Traveling Allowance" into "Running Allowance", it had no discretion left thereafter to prevent him from carrying out the amendment, on the technical ground that the period indicated by Order 6, Rule 18, Code of Civil Procedure, for this purpose, has expired. The Code of Civil Procedure, it is urged, does not govern amendment of applications under section 15(2) of the Act. The contention is untenable. While it is true that Rule s 17 and 18 of Order 6 of the Code do not, in terms, apply to amendment of an application under section 15(2), the Authority is competent to devise, consistently with the provisions of the Act and the Rules made thereunder, its own procedure based on general principles of justice, equity and good conscience. One of such principles is that delay defeats equity. The Authority found that the applicant was guilty of gross negligence. He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application. In the circumstances, the Authority rightly refused to put a premium on this delay and laxity on the part of the appellant. In the view we take on the claim to running allowance we need not pronounce finally on whether an amendment to the relief once granted requires to be formally carried out in the petition, as in a pleading in court, less rigidity being permissible in quasi judicial proceedings. Mr. Bishan Narain further contends that Running Allowance was a part of the pay or substantive wages. In support of this argument he has invited our attention to rule 2003 of the Railway Establishment Code, clause 2 of which defines 'average pay '. According to the second proviso to this clause in the case, of staff entitled to running allowance, average pay for the purpose of leave salary shall include the average running allowance earned during the 12 months immediately preceding the month in which a Railway servant proceeds on leave subject to a maximum of 75 per cent of average pay for the said period, the average running allowance once determined remaining In operation during the remaining part of the financial year 1 cases of leave not exceeding one month. The crucial words, which have been underlined. show that such Running Allowance is counted towards 'average pay ' in those cases only where the leave, does not exceed one month. It cannot, therefore, be said that Running Allowance was due to the appellant as part of his wages for the entire period of his inactive ser 186 vice. Traveling allowance or running allowance is eligible if the officer has traveled or run, not otherwise. We therefore negative this contention. For the foregoing reasons, we allow this appeal, set aside the order of the Appellate Authority and restore that of the Prescribed Authority. The appellant shall have his costs throughout. KRISHNA IYER, J. The judgment just delivered has my full concurrence but I feel impelled to make a few observations not on the merits but on governmental disposition to litigation, the present case being symptomatic of a serious deficiency. In this country the State is the largest litigant to day and the huge expenditure involved makes a big draft on the public exchequer. In the context of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy, the absence of which, in the present case, he led the Railway callously and cantankerously to resist an action by its own employee, a small man, by urging a mere technical plea which has been pursued right up to the summit court here and has been negatived in the judgment just pronounced ? Instances of this type are legion as is evidenced by the fact that then Law Commission of India in a recent report(1) on amendments to the Civil Procedure Code has suggested the deletion of section 80, finding that wholesome provision hardly ever utilised by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is a party. It is not right for a welfare ' State like ours to be Janus faced, and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees under it pleading limitation and the like. That the tendency is chronic flows from certain observations I had made in the Kerala High Court decision(2) which I may usefully excerpt here "The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State 's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is. a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move, private parties to fight (1) Law Commission of India, .54th Report Civil Procedure Code. (2) P.P. Abu backer vs The Union of India : A.I.R. 1972 Ker. 103 : 107 para 5. 187 in court. The lay out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. This second appeal strikes me as an instance of disregard of that policy. " All these words from the Bench, hopefully addressed to a responsive Government, may, if seasonable reactions follow, go a long way to avoidance of governmental litigiousness and affirmance of the image of the State as deeply concerned only in Justic Social Justice. The phyrric victory of the poor appellant in this case is a sad justification, for the above observations.

The appellant, a Railway Guard, was convicted and sentenced for an offence under section 509, I.P.C. The High Court uphold his conviction. On appeal this Court set aside.the conviction and acquitted him. In the meanwhile the appel lant, was dismissed from service with effect from 31st March, 1956. The appellant impugned the order of dismissal in the High Court which held that his dismissal was wholly void and ineffective. Thereupon the appellant was reinstated and was informed that the matter of his back wages for the period between the date of his dismissal and the date of reinstatement would be decided later. By another letter he was informed that this period was treated as leave due. He was paid Rs. 81.51 as his wages for the entire period ending on March 7, 1959. The appellant made an application under section 15(2) of the claiming Rs. 9,016.60 plus ten times the said amount as compensation. In addition, he first claimed 'traveling allowance ' but later sought to amend the application by replacing 'traveling allowance by 'running allowance This was rejected by the Prescribed Authority. The Authority allowed a part of the claim but the appellant preferred an appeal to the Appellate Authority under the Act. The Appellate Authority held that the claim was barred by time as limitation had commenced from the date of dismissal from service and not from the date of reinstatement Or the date on which it was decided to treat the period of dismissal as leave due. On the question (i) whether the. claim application filed by the appellant tinder s 15(2) was time barred and (ii) whether he was entitled to running allowance. Allowing the appeal, HELD : (i) the first proviso to sub sections (2) of section 15 indicates two alternative starting points for limitation, namely, (i) the date on which deduction from wages was made or (ii) the date on which the payment of the wages was due to be made. [183 A] From a reading of section 15 it is clear that the legislature has deliberately used, first. in sub section (2) and then in sub section the expressions "deduction of wages" c and "delay in payment of wages ' as two distinct concepts. Terminus a quo (i) in the proviso expressly relates to the deduction of wages, while (ii) is referable to the delayed wages. If both these terminii were always relatable to the same Point of time, then there would be nor point in mentioning terminus a quo (i) and the legislature could have simply said that limitation for a claim under section 15(2) would always start from the date on which the wages "fall due" or "accrue" as has been done under Article 102 of the Limitation Act which applies only to suits for recovery of wages. The very fact that two distinct starting points of limitation referable to two distinct concepts have been stated in the proviso. shows that the legislature had visualised that the date of deduction of wages and the due date of delayed wages. may not always coincide. Conjunction "or" which in the context means "either" and the phrase "as the 179 case may be" at the end of the proviso are clinching indicate of this interpretation. They are not mere surpluses and must be given their full effect. The legislature is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative, each may be presumed to convey a separate and distinct meaning. the choice of either of which may involve the rejection of the other. To hold that the two expressions "wages deducted" and "wages delayed" though used in the alternative. carry the same meaning, and in the proviso are always referable to one and the same point of time, would be contrary to this primary canon of interpretation. (183B E] Ordinarily where an employee was dismissed on one date and reinstated on another, the deduction of wages may synchronize with the act of reinstatement. In the instant case the deduction did not take place on the date of reinstatement because the order of reinstatement expressly stated that decision with regard to his wages for the period would be taken later. Therefore the deduction would coincide with the decision deducting the wages. Such a decision was taken on February, 18, 1959 and limitation under the first part of the proviso commenced from that date. [183G H] Jai Chand Sawhney vs Union of India ; ; Divisional Superintendent. Northern Railway vs Pushkar Dutt Sharma (1967] ; held inapplicable. (ii) Running allowance was counted towards average pay in those cases only where the leave did not exceed one month. Travelling allowance or running allowance was eligible if the officer had travelled or run, not otherwise. it could not be said that running allowance was due to the appellant as part of his wages for the entire period of his inactive service. [185H; 186A] Per Krishra Iyer J. (Concurring) In this country the State is the largest litigant today and the huge expenditure involved makes a big draft on the public exchequer, In the context of expanding dimensions of State activity and responsibility, it is not unfair to expect finer sense and sensibility in its litigation policy, the absence of which in the present case had led the Railways callously and cantankerously to resist an action by its own employee. a small man, by urging a mere technical plea which had been pursued right up to the highest court and had been negatived, It was not right for a welfare State like ours to be Janus faced and while formulating the humanist project of legal aid to the poor contest the claims of poor employees under it pleading limitation and the like, [186 E]

Civil Appeal No. 318 of 1970. From the Judgment and Decree dated 31 7 1969 of the Orissa High Court in Appeal from Original Decree No. 78/58. P.K. Chatterjee and Rathin Dass for the Appellant. G.S. Chatterjee for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by certificate granted under article 133 of the Constitution is directed against a Division Bench judgment dated July 31, 1969 of the Orissa High Court and arises in the following circumstances. The appellants plaintiffs had instituted a suit under section 62(2) of the Orissa Religious Endowment Act, 1939 (Act No. 4 of 1939) (hereinafter referred to as the 'Act ') (this Act applies only to public endowments) to set aside the order dated 4 8 1950 of the respondent defendant by which the temple of the appellants, whose deity was Radhakanta Deb, was declared to be a public temple and a trust and the endowment was held to be of a public nature and, therefore, was to be governed by the Act. The Subordinate Judge decreed the appellants plaintiffs suit holding that the deity installed in the temple was a family deity of the Pani family and the endowment being of a private nature, the Act had no application and the Order passed by the respondent regarding the management was set aside. The Respondent (Commissioner of Hindu Religious Endowments, Orissa) filed an appeal in the High Court against the decision of the 828 Subordinate Judge which was heard by the Division Bench referred to above. The High Court reversed the decision of the Subordinate Judge and held that the temple and the deity installed therein being a public endowment fell within the four corners of the Act and the respondent was fully entitled to pass orders for its management. Hence, this appeal by certificate before us. The sole question that falls for determination in this appeal is as to whether or not the appellant temple was a public endowment as alleged by the respondent or a family deity as alleged by the appellant. The learned counsel for the appellants, P.K. Chatterjee, has submitted that the approach made by the High Court was wholly incorrect and it has misconstrued the evidence and documents produced in the case to show that the endowment was a private one and the deity installed in the temple was purely a family deity having nothing to do with the public. The learned counsel for the respondent. however, supported the judgment of the High Court that the endowment was of a public nature The concept of a private endowment or a private trust is unknown to English law where all trusts are public trusts of a purely charitable and religious nature. Thus, under the English law what is a public trust is only a form of Charitable Trust. Dr. Mukherjee in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition) has pointed out that in English law the Crown is the constitutional protector of all properties subject to charitable trusts as these trusts are essentially matters of public concern. The learned author has further pointed out that one fundamental distinction between English and Indian law lies in the fact that there can be religious trust of a private character under the Hindu law which is not possible in English law. It is well settled that under the Hindu law, however, it is not only permissible but also very common to have private endowments which though are meant for charitable purposes yet the dominant intention of the founder is to instal a family deity in the temple and worship the same in order to effectuate the spiritual benefit to the family of the founders and his descendants and to perpetuate the memory of the founder. In such cases, the property does not vest in God but in the beneficiaries who have installed the deity. In other words, the beneficiaries in a public trust are the general public or a section of the same and not a determinate body of individuals as a result of which the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust. The members of the public may not be debarred 829 from entering the temple and worshipping the deity but their entry into the temple is not as of right. This is one of the cardinal tests of a private endowment. Similarly, even the Mahomedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called Waqf allal Aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct then the Waqf becomes a public waqf, the property vesting in God. A public Waqf under the Mahomedan law is called Waqf fi sabi lil lah. The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple. In the instant case, however, as there are two documents which clearly show the nature of the endowment, our task is rendered easier. It is well settled that the issue whether a religious endowment is a public or a private one must depend on the application of legal concept of a deity and private endowment, as may appear from the facts proved in each case. The essential distinction between a private and a public endowment is that whereas in the former the beneficiaries are specified individuals, in the latter they are the general public or class of unascertained people. This doctrine is well known and has been accepted by the Privy Council as also by this Court in a large catena of authorities. This being the essential distinction between the nature of a public or a private endowment, it follows that one of the crucial tests to determine the nature of the endowment would be to find out if the management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their descendants. Other factors that may be considered would be the nature of right of the worshippers, that is to say, whether the right to worship in the temple is exercised as of right and not as a matter of concession. This will be the strongest possible circumstance to indicate that the endowment was a public one and the beneficiaries; are the worshippers and not particular family. After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity. If the main worshippers are the members of the public who worship as a matter of right then the real purpose is to confer benefit on God. 830 Some of the circumstances from which a public endowment can be inferred may be whether an endowment is made by a person who has no, issue and who after installing the deity entrusts the management to members of the public or strangers which is a clear proof of the intention to dedicate the temple to public and not to the members of the family. Where, however, it is proved that the intention of the testator or the founder was to dedicate the temple merely for the benefit of the members of the family or their descendants, the endowment would be of a private nature. The mere fact that members of the public are allowed to worship by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple. In Deoki Nandan vs Murlidhar this Court observed as follows: "The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. . The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers." (Emphasis supplied) This view was reiterated in a later decision of this Court in Mahant Ram Saroop Dasji vs S.P. Sahi, Special Officer In Charge of the Hindu Religious Trusts & Ors. where S.K. Das, J. as he then was, speaking for the Court clarified the law thus: 831 "But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested. Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his principles of Hindu Law (11th edition) 'Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested the endowments is a private one '. " In Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi & Ors. the same principles were reiterated and it was pointed out that the entries made in the Inam Register showing the nature of the endowment were entitled to great weight and taken with the vastness of the temple, the mode of its construction, the long user by the public as of right and grants by Rulers and other persons were clear pointers to the fact that the endowment was of a public nature. In the case of Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das,(2) this Court laid down some important tests to determine the nature of the endowment. In this connection, the fol lowing observations need specific mention: "Therefore, evidence that sadhus and other persons visiting the temple are given food and shelter is not by itself indicative of the temple being a public temple or its proper ties being subject to a public trust. Evidence that the mahants used to celebrate Hindu festivals when members of the public used to attend the temple and give offerings and that the public were admitted to the temple for darshan and worship is also not indicative of the temple being one for the benefit of the public. The fact that members of the public used to come to the temple with out any hindrance also does not necessarily mean that the temple is a public temple, for members of the public do attend private temples. Yet, the Privy Council held that the general effect of the evidence was that the family had treated the temple as family property and the mere fact of the members of the public having come to the temple and having made offerings and the mela having been held which 832 gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away were not enough to hold the temple and the properties as a public trust. . Thus, the mere fact of the public having been freely admitted to that temple cannot mean that courtbs should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. " It may thus be noticed that this Court has invariably held that the mere fact that the members of the public used to visit the temple for the purpose of worship without any hindrance or freely admitted therein would not be a clear indication of the nature of the endowment. It is manifest that whenever a dedication is made for religious purposes and a deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and therefore, the mere factum of worship would not determine the nature of the endowment. Indeed if it is proved that the worship by the members of the public is as of right that may be a circumstance which may in some cases conclusively establish that the endowment was of a public nature. In Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan vs The Charity Commissioner State of Bombay all the aforesaid cases were summarised and the principles indicated above were reiterated. In Gurpur Guni Venkataraya Narashima Prabhu & Ors. vs B.G. Achia, Assistant Commissioner, Hindu Endowment, Mangalore & Anr. Krishna Iyer, J., reiterated these very principles in the following words: "The law is now well settled that 'the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right '. (See Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das [1971] 3 SCR 680, 689). " 833 Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. Fortunately, in this case there are two important documents Ext. A and Ext. 1 from which the nature of the endowment can be clearly spelt out and we would examine these documents in the light of the tests and the principles enunciated above because after going through the judgment of the High Court we are satisfied that the High Court has not properly construed some of the important features contained in the documents and the evidence and has in fact overlooked certain important aspects which completely negative the fact that the endowment was of a public nature. A is an ancient document executed as far back as February 18, 1895. The authenticity and the genuineness of this document is beyond question and the High Court itself has described this document as a document which has created the present endowment. Even though the document may not be treated as having itself. 834 created the endowment but it gives clear indication that the endowment was created near about the date when this document was executed. Some of the extracts of this document which are undisputed, in our opinion, clearly and conclusively show that the endowment was of a private nature and the intention of the founder was merely to instal a family deity in the temple. In order to fortify our conclusions, it may be necessary to give certain important recitals from this document which may be extracted thus: "That I Gopinath Pani, my father Bhagyarathi Pani, Alekha Pani, father of Dinabandhu Pani and father 's brother of Basudeo Pani and Narsinha Pani father of Balabhadra Pani minor, having made the image of our family deity Sri Padhakanta Deb installed it in a temple which was built by them in Depur Sasan in Pipli Division and they endowed the Tanki Bajyapati, Tanki Baheli and Kharida Swata properties given below from the usufruct of which day to day Sibapuja and Janijatra of the deity was managed by them as the Sebait and Marfatdar and we are also managing in the same way. For the proper management of the deity 's property and the Sebapuja of the deity in future, we lay down the following directions out of our own accord. . 1. we hereby appoint the said Adwait Charan Das Babaji, Sutradhari Gaudeswar Sampraday Baisnab by caste, worship and Sebapuja of the deity by profession as the Tatwabadharak and Sebait and hereby (appoint) him by this trust deed and we become aloof from those duties vesting in him the following properties of the deity. 2. From this day the said Babaji will manage all the immovable and movable properties of the deity as the Sebait and Tatwabadharak. He will realise the usufructs of the property and after giving the rent of the lands, he will manage the day to day Bhog and the festivities of the deity well according to the previous customs and rules and in the way we were doing and will keep the surplus amount in the store of the deity. The day to day Bhoga and the festivities of the deity will be done according to the income of the properties of the deity and will never exceed the said income. The said Babaji cannot incur any loan on behalf of he deity nor can he sell, mortgage, keep as surety or trust 835 any of the immovable or movable properties nor can he misappropriate any cash kind ornament or utensils of the deity. . 6. If the said Babaji does anything contrary to the conditions laid down in items 4 & 5 written above he will be removed from his right of Sebaitship and Tatwabadharakship by us or cur heirs who will appoint another fit man in his place and take the charge of all the properties in the store of the deity . 9. As the properties maintained herein have been endowed to the deity before, we or our successors had or will have no claim on this and any such claim made, shall be void. . 11. Now or in future the man appointed as Tatwabadharak will work according to rules and directions mentioned herein and for the Sebapuja of the deity the directions and the menus are determined here for all days to come. All other necessary expenses of the Jatra (festivals) repairing of the temple, utensils and the ornaments of the deity, etc. will be done according to the income. . 14. Any pious man of our family at present and in future will see whether the work of the deity is being performed according to the direction as aforesaid by the appointed Tatwabadharak and will take proper action as mentioned above. If in future there be no fit man in our family, any of the Baisnab Sampraday and any Hindu of reputation of the village and of the locality is entitled to take such action, we have no objection to this." (Emphasis supplied) The intention which can be gathered from this document is placed beyond doubt by a later document Ext. 1 which was executed on 17 11 1932 and is in the nature of a settlement Deed, the relevant portions of which may be quoted thus: "Our forefathers for the good of our family by making the family deity Sri Radhakanta Deb Thakur, erecting a 836 temple befitting. His installation, installing Him therein and endowing the landed properties as described in the schedule below, used to carry out all the Sebapuja work of the deity in orderly manner by meeting the expenses from out of the income and yield of the said properties. As the said Lalit Charan Das and Raghunath Pani a person of our family together misappropriated by utilising the income and yield of the properties of the deity in illegal expenditures and without carrying on the Sebapuja work in proper manner caused heavy damage to the movable and immovable properties of the deity in different unfair means, we have removed them from Sebapuja work of the deity and also from management and custody of the deity 's properties. If the work of the deity is carried on for some time more in the manner in which the work is being managed now then the temple established by our forefathers as a mark of pride of our family and all the Debuttor properties of the deity will be destroyed in toto and the noble glory of the forefathers will perish . We by this deed of trustee order determination appointed you as trustee for the Sebapuja work of our family deity Shri Radhakanta Deb Thakur and for the work of looking after His properties, according to the following conditions and terms, so that from today onwards on the strength of this deed of trustee order determination you from Chela to Bara chela by carrying on the Sebapuja, offerings, religious ceremonies and festivals and by preserving and looking after all the debuttor properties, realise the income and yield therefrom according to convenience. . 10. If we or any body amongst us misappropriate any money or property by taking secretly from the tenants or borrowers, we and our successors will be liable for punishment according to criminal law and you can realise any compensation you intend to take either mutually or with the help of the court. We and our sons and grandsons shall be bound and liable to pay. . 22. But if you might have obtained, any amount on loan against the income of the debuttor property and anything that you might have spent from your own pocket for the improvement of the deity of the muth and to save the property, we will be bound and liable to repay the said 837 amount alongwith just and prescribed rate of interest, and we shall repay. If we do not repay voluntarily you and your successors will realise from us and from our and from our son 's and grandsons existing and to be acquired movable and immovable properties and from the existing and to be acquired debuttor properties of the deity according to law." (Emphasis supplied) Considering the two documents together the fundamental features, which now from the recitals extracted above, may be summarised as follows: (1) That the deity was installed in the temple purely as a family deity and the dedication WAS made only for a group of individuals who may be connected with the family of the Panis who were the founders of the deity. This clearly establishes that the intention of the founders was to dedicate their properties and instal the deity in the temple only for purposes of the Pani family, and their descendants. A perusal of the recitals extracted above would unmistakably show that there can be no two opinions on this question. (2) Extensive private properties belonging to the Pani family alone were dedicated for the maintenance Of the temple and the deity and there is nothing to show that any contribution was called for from members of the public nor is there any averment in the deed to show that there was any stipulation for taking offerings from the members of the public to worship in the temple. (3) There was no provision for framing any scheme by associating the members of the public or consulting them. In fact, Ext. 1 shows that even after the descendants of the founders had fallen on evil days and were not in a position to provide sufficient funds for the maintenance. Of the temple yet they appointed Udayanath Pattanayak to manage the affairs of the deity and bound themselves personally to reimburse the Manager for any out of pocket expenses incurred in connection with the maintenance of the temple. This circumstance manifestly proves that the endowment was of a purely private nature right from the time it was created till 1932 when the management 838 was changed and continued to be of the same nature. Indeed, the personal undertaking contained in Ext. 1 clearly shows that there was never any intention to treat the temple as a public one but the intention was, if at all, to continue it in the name of the family so long as the family continued. (4) There is no recital in any of the documents to show that the members of the public or the vil lagers of the place where the temple was situated were entitled to worship as of right. On the other hand, PWs 1 to 6 who were examined by the appellants plaintiffs have categorically stated that members of the public were not allowed to worship in the temple as of right. In this connection PW 1 stated as follows: "Members of the public have no right to have Darsan of, or to offer bhog to the deity. The villagers do not make Kirtan before the deity or take any part in any festivity of the deity. The deity has no Bahari Jatra. No member of the public made any gift to the deity. No khairat is ever given. The properties of the Thakur are all (sic) with rent. " PW. 5 stated that the disputed deity was installed by the family of the other Panis and not by his ancestors and that the deity was not their family deity and was not dedicated to the public. As against this oral evidence, the defence examined DW 1, Raghunath Pani, whose evidence has been rejected both by the Trial court and the High Court. Thus, apart from the unimpeachable documentary evidence discussed above, even the oral evidence to prove that the endowment was of a private nature is clear and has not been rebutted by the defence. In this state of the evidence we are indeed surprised to find how the High Court could hold that the endowment was of a public nature. The High Court seems to have been carried away by factors or considerations which are of a very minor nature and by themselves do not prove that the endowment was of a public nature. For instance, one of the circumstances that weighed with the High Court was that the temple was a massive structure of about 25 yards in height. That by itself, divorced from other things, could not prove that the temple was a public one. So far as the oral evidence is concerned. the High Court observed thus: 839 "Apart from the above features disclosed by the oral evidence which are indicative of the institution having been treated as a public one. the recitals in some of the clauses of the two documents. (Exts. A & 1) also unequivocally indicate an intention of dedication in favour of public." These observations are not at all borne out by the evidence of PWs 1 to 5 which is the only oral evidence led in the case, the evidence of DW 1 having been rejected by the trial court as also the High Court. The High Court took into consideration the fact that certain properties were needed for the maintenance of the temple and Seba puja and other ceremonies were being performed by the Shebaits and Marfatdars. The High Court overlooked the fact that Shebait or the Marfatdars were appointed by the founders of the endowment and the entire management and control of the temple was retained by the family. We are unable to agree as to how in these circumstances could it be said that the endowment was of a public nature. Another circumstance that weighed with the High Court was that bhogs were offered during the day which, according to the High Court, was in consonance with the rules observed by the public. This circumstance also is not of much consequence because bhogs are offered even in private temples. The High Court also seems to have relied on clause 15 of Ext. A to come to its decision that the endowment was of a public nature. The High Court was of the view that under this clause in certain contingencies any member of the Vaishnav sect or Hindu resident of the village was authorised to exercise the powers and functions mentioned in clause 7 of the deed. We are, however, unable to agree with the interpretation placed by the High Court on clause 15 of Ext. A. Clause 15 merely provides that if in future the family becomes extinct and no fit person could be found then any of the Baisnab Sampraday or any reputed Hindu of the village could take action, namely, to perform the work of the deity. This was a contingent provision and here also the founders did not confer the duty of performing all the work on the members of the public but they chose or selected only a particular person belonging to a particular community which also shows that even if the family was to become extinct, the private nature of the endowment was not to be changed. Indeed if the intention was to instal the idol in the temple by way of a public endowment, clause 15 would have clearly provided 840 that in cast the family became extinct the members of the public or of the brotherhood or the Government could have taken over the management. On the other hand, the interpretation of the various clauses of the documents clearly shows that sufficient care has been taken by the Pani family to see that the dedication to the family deity is not changed even if the family becomes extinct. Having, therefore, carefully perused the oral and the documentary evidence in the case we are satisfied that the conclusions arrived at by the High Court are wrong and are based on misinterpretation of Ext. A and Ext. 1 and misreading of the oral evidence led in the case, which, as we have shown, runs counter to the conclusions arrived at by the High Court. For the reasons given above, we allow this appeal, set aside the judgment of the High Court, decree the plaintiffs appellants suit and restore the judgment of the trial court. In the peculiar circumstances of this case, the appellants will be entitled to costs of the appeal in this Court quantified at Rs. 4,000/ (Rupees four thousand only) S.R. Appeal allowed.

Allowing the appeal by certificate, the Court ^ HELD: The tests which provide sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature are: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment. [833 A E] Deoki Nandan vs Murlidhar, ; ; Mahant Ram Saroop Dasji vs S.P. Sahi, Special Officer in Charge of the Hindu Religious Trusts & Ors., [1959] 2 Supp. SCR 583; Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi & Ors., ; ; Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das, , Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan vs The Charity Commissioner, State of Bombay, ; ; Gurpur Guni Venkataraya Narashima Prabhu & Ors. vs B.G. Achia, Asistant Commissioner, Hindu Endowment Mangalore & Anr., ; , followed. In the instant case: (i) exhibit A, an ancient document executed as for back as February 18, 1895, the authenticity and the genuineness of which is beyond question, clearly and conclusively show that the endowment was of a private nature and the intention of the founder was merely to instal a family deity in the temple. (ii) The fact that the temple was of a massive structure of about 25 yards in height, by itself, divorced from other things, could not prove that the temple was a public one. (iii) The Shebaits or the Marfatdars were appointed by the founders of the endowment and the entire management and control of the temple was retained by the family. (iv) The fact that bhogs 827 were offered during the day which was in consonance with the rules observed by the public is not of much consequence because bhogs are offered even in private temples. (v) Clause 15 merely provides that if in future the family becomes extinct and no fit person could be found then any of the Baisnab Sampraday or any reputed Hindu of the village could take action, namely, to perform the work of the deity. This was a contingent provision and here also the founders did not confer the duty of performing all the work on the members of the public but they chose or selected only a particular person belonging to a particular community which also shows that even if the family was to become extinct, the private nature of the endowment was not to be changed. Indeed if the intention was to instal the idol in the temple by way of a public endowment, clause 14 would have clearly provided that in case the family become extinct the members of the public or of the brotherhood or the Government could have taken over the management. On the other hand, the interpretation of the various clauses of the documents clearly shows that sufficient care has been taken by the Pani family to see that the dedication to the family deity is not changed even if the family becomes extinct. [833 H, 834 A, 838 G H, 839 C, E H, 840 A B]

Appeal No. 646 of 1967. Appeal by special leave from the judgment and order dated December 1, 1966 of the Allahabad High Court in Civil Revision No. 721 of 1964. J. P. Goyal and G. section, Chatterjee, for the appellant. V. section Desai and B. R. Agarwala, for the respondent. The Judgment of the Court was delivered by Shah, C.J. On October 5, 1960 the appellant agreed to do certain construction work for the respondent on the terms and conditions of a "written tender". Clauses 12 & 13 of the tender were : "12. In the event of any dispute, arising out of this sub contract, the parties hereto agree that the matter shall be referred to arbitration by two Arbitrators under the of 1940 and such amendments thereto as may be enacted thereafter. Notwithstanding the place where the work under this contract is to be executed, it is mutually understood and agreed by and between the parties hereto that this Contract shall be deemed to have been entered into by the parties concerned in the City of G Bombay and the Court of law in the City of Bombay alone shall have jurisdiction to adjudicate thereon. " Disputes arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under section 20 of the Indian 10 of 1940 that the agreement be filed and an order of reference be made to an Arbitrator or Arbitrators appointed by the Court to settle the dispute between the parties in respect of the construction works done by him. The respondent contended that the Civil Courts in Bombay alone had because of the terms contained in cl. 13 316 jurisdiction to entertain the petition. The Trial Judge rejected that contention observing that the condition in cl. 13 that "the contract shall be deemed to have been entered into by the parties concerned in the city of Bombay has no meaning unless the contract is actually entered into in the city of Bombay", and that there was no evidence to establish that it was entered into in the city of Bombay. The Trial Judge concluded that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the Courts at Bombay, which they did not otherwise possess. The High Court of Allahabad in exercise of its revisional jurisdiction set aside the order passed by the Subordinate Judge and declared that the Courts in Bombay had jurisdiction under the general law to entertain the petition, and by virtue of the covenant in the agreement the second branch of cl. 13 was applicable and binding between the parties and since the parties had agreed that the Courts in Bombay alone had jurisdiction to adjudicate upon the contract, the petition to file the arbitration agreement could not be entertained by the Courts at Varanasi. Against the order of the High Court directing that the petition be returned for presentation to the proper Court, the, appellant has appealed to this Court with special leave. Section 41 of the provides in so far as it is relevant : "Subject to the provisions of this Act and of rules made thereunder (a) the provisions of the Code of Civil procedure, 1908, shall apply to all proceedings before the court, and to all appeals under this Act. " The Code of Civil Procedure in its entirety applies to proceedings under the . The jurisdiction of the Courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By cl. 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the City of Bombay. In any event the, respondent have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts at Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall 317 be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene section 28 of the Contract Act. Counsel for the appellant contended that merely because the respondent carried on business in Bombay the Courts at Bombay were not invested with jurisdiction to entertain any suit or a partition for filing an arbitration agreement. Section 20 of the Code of Civil Procedure provides : "Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a,) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b). . . . . . (c) the cause of action, wholly or in part, arises. "Explanation II. A corporation shall be deemed to carry on business at its sole or principal office in India, or, in respect of any cause of action arising at. any place where it has also a subordinate office, at such place. " Plainly by the terms of section 20(a) read with Explanation II, the respondent Company was liable to be sued at Bombay where it had its principal place of business. The argument of counsel for the appellant that the expres sion "corporation" in Explanation II includes only a statutory corporation and not a company registered under the Indian Companies Act is, in our judgment, without substance. The Code of Civil Procedure uses the expression "corporation" as meaning a legal person and includes a company registered under the Indian Companies Act. Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code of Civil Procedure that a corporation referred to under section 20 means only a statutory corporation and not a company registered under the Indian Companies Act. Since an application for filing an award in respect of a dispute arising out of the terms of the agreement could be filed in the Courts in the City of Bombay, both because of the terms of cl. 13 318 of the, agreement and because the respondents had their Head Office where they carry on business at Bombay, the agreement between the parties that the Courts in Bombay alone shall have jurisdiction to try the proceeding relating to arbitration was binding between them. The appeal fails and is dismissed with costs. G.C. Appeal dismissed.

On October 5, 1960 the appellant agreed to do certain construction work for the respondents company registered under the Indian Companies Act and having its principal place of business at Bombay On the terms and conditions of a written tender. Clause 12 of the tender provided for arbitration in case of dispute. Clause 13 provided that notwithstanding the place where the work under the contract was to be executed the contract shall be deemed to have been entered into by the parties at Bombay and the court in Bombay alone shall have jurisdiction to adjudicate thereon. On disputes arising between the parties the appellant submitted a petition to the Court at Varanasi for an order under section 20 of the that the agreement be filed and an order of reference be made to an arbitrator or arbitrators appointed by the court. The respondent contended that in view% of cl. 13 of the arbitration agreement only the courts at Bombay had jurisdiction. The trial court held that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the courts of Bombay which they did not otherwise possess. The High Court at Allahabad in exercise of its revisional jurisdiction held that the courts at Bombay had jurisdiction under the general law and hence could entertain the petition. It further held that in view of cl. 13 of the arbitration agreement the petition could not be entertained at Varanasi. Against the order of the High Court directing the petition to be returned for presentation to the proper court, the appellant appealed to this Court by special leave. The question that fell for consideration were : (i) whether the courts at Bombay alone had jurisdiction over the dispute; (ii) whether Explanation 11 to section 20(a) of the Code of Civil Procedure refers only to Government corporations and not to companies registered under the. Indian Companies Act. HELD : (i) The Code of Civil Procedure in its entirety applies to proceedings under the by virtue of section 41 of the latter Act. The jurisdiction of the courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By the terms of section 20(a) of the Code .of Civil Procedure read with Exp. 11th thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay. [316 G] It is not open to the par ties by agreement to confer jurisdiction on any Court which it did not otherwise possess under the Code. But where two courts have under the Code of Civil Procedure jurisdiction to try a suit of proceeding an agreement between the parties that the dispute between 315 them shall be tried in one of such courts is not contrary to Public Policy Such an agreement does not contravene section 28 of the Contract Act. [316 H] Since in the present case the courts at Bombay had jurisdiction under the Code of Civil Procedure the agreement between ,the parties that the courts in Bombay alone shall have jurisdiction to try the proceedings relating to arbitration was binding between them. [318 A] (ii) Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code to support the contention that a Corporation referred to under section 20 means only a statutory corporation and not a company registered under the Indian Companies Act. [317 G H]

Appeal No. 2063 of 1973. Appeal by special leave from the judgment and decree dated the 25th July. 1973 of the Calcutta High Court in Appeal from Appellate Decree No. 1193 of 1972. Civil Appeal No. 1304 of 1973. From the judgment and order dated the 3rd February, 1972 of the Calcutta High Court in L.P.A. No. 14 of 1969. P. Chatterjee and Rathin Das, for the appellant (In C. A. 2063/73). Urmila Kapoor and Shobha Dikshit, for the respondent (In C.A. No. 2063/73). P.K. Chatterjee, G. section Chatterjee, and Sukumar Basu, for the Advocate General for the State of West Bengal. Sukumar Ghose, for the appellants. (In C.A. No. 1304/73). D. N. Mukherjee, for the respondents (in C.A. No. 1304/73). The judgment of M. H. Beg and V. R. Krishna Iyer, JJ was delivered by Krishna Iyer, J. P. K. Goswami, J. gave a separate Opinion. KRISHNA IYER, J. Calcutta or Cochin, for the urban people of India, the shocking scarcity of a roof to rest one 's tired bones is an L346SupCI/75 778 unhappy problem of social justice that compels control of rent. and eviction laws. In the case now before us, attacking the constitutionality of legislation handcuffing the landlord proprietariat 's right of eviction, the law has to be tested not merely by the cold print of article 19(1)(f) but also by the public concern of article 19(5) and the, compassionate animus of article 39, Parts III and IV of the Constitution together constitute a complex of promises the nation has to keep and the legislation challenged before us is in partial fulfilment of this tryst with the people. These observations become necessary in limine since counsel for the respondents dismissed the concept of social justice as extraneous to an insightful understanding of the section invalidated by the High Court, while we think that judicial conscience is not a mere matter of citations of precedents but of activist appraisal of social tears to wipe out which the State is obligated under the Constitution. The two appeals before us, raising substantially identical points, have been heard together and are being disposed of by a common judgment. Both of them stem from a decision of the Calcutta High Court reported as Sailendra Nath vs section E. Dutt(1). One of the decisions under appeal (C.A. 2063 of 1973) was rendered by a Single Judge of the High Court following a Division Bench ruling of the same Court (i.e., the one reported as Sailendra Nath vs section E. Dull) since he was obviously bound by it. A provision imparting some sort of retroactivity to a 1969 legislative amendment implanting additional restrictions on eviction of premises under the earlier West Bengal rent control law has been voided by the High Court in the judgment& under appeal. The aggrieved tenant in each case has appealed and the State, not being directly a party to the legislation, has entered appearance to support, the legislation and to challenge the Calcutta decision to the extent it has invalidated the retrospective part of the statute. Welfare legislation calculated to benefit weaker classes, when their vires is challenged in Court, casts an obligation on the State, particularly when notice is given to the Advocate General, to support the law, if necessary by a Brandeis brief and supply of socio economic circumstances and statistics inspiring the enactment. Courts cannot, on their own, adventure into social research outside the record and if Government lets down the Legislature in Court by not illumining the provisions from the angle of the social mischief or economic menace sought to be countered, the victims will be the class of beneficiaries the State professed to protect. In this case, we are unable to compliment the State or the Advocate General from this point of view. It may happen that when the Court decides against the validity of a measure or order because Government fails to bring the socially relevant totality of facts, it is used Is an alibi by (1) A.1 R. 779 he latter for the misfortune. Courts cannot help cover up the Executive 's drowsy default or half hearted help in making the socioconomic conspectus available. The West Bengal Premises Tenancy Act, 1956 (Act XII of 956) (for short, referred to as the basic Act) clamped down several restrictions on ejectment of tenants by landlords from buildings, the policy behind it being alleviation of the lot of the weaker segment of the urban community without their own homes in the context of the scarcity of accommodation and the colossal sociceconomic upheaval which would follow if unbridled evictions were allowed. The temptation to evict or rack rent under scarcity conditions is an irresistible evil in our economic order and it is an all India phenomenon that the social conscience of the State Legislatures has responded to this large scale threat by effective control measures. Indeed, for decades now, every State in India has on, the statute book rent control law and, what is more pertinent to the present case, tactics of circumvention have compelled the enactment of additional safeguards from time to time by vigilant statutory measures. West Bengal, a populous State, with an overcrowded city choked by the largest human congregation in the country, enacted the basic Act whereby the plenary right of landlords to recover possession of their buildings was shackled in many ways. Industrial growth and other factors induced demographic congestion such as was witnessed in the urban areas of that State. Consequently, the legislature, was faced with a fresh danger in the shape of ingenious transfers of ownership of buildings by indigenous but indigent landlords and the transferees resorting to eviction on a large scale equipped as they were with better financial muscles and motivated as they were by hope of speculative returns from their investments oil eviction. Presumably, the phenomenal increase of the menance of eviction by the new species of transferee owners of building was countered by a legislative measure the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (Act XXXIV of 1959) (hereinafter referred to as the amendment Act). By this legislation the new class of transferee landlords was subject to a stringent trammel viz. that they should not sue for eviction within three years of the date of transfer (We are not immediately concerned here with certain other changes effected by the Amendment Act). The social objective and the practical effect of this fetter will be con Court has upheldthis provision which is now contained in section 13(3A) sidered briefly the little later. Suffice it to say at this stage the High of the basic Act. However , while holding the provision substantial intra vires the Court has invalidated the giving effect to the provision to pending suits and appeals. Such limited retrospectivity had been incorporated by section 13 of the amending Act and, if the law were only prospective the landlords in the two cases who had initiated their litigation several years prior to the enactment of the Amendment Act would be free from the three year interdict and the other extra restrictions. Once the embargo is out of their way, the decree , for eviction they have secured must stand. On tile contrary, if the restriction on eviction by the transferee landlords were to operate on 780 pending litigation the appellants tenants are immune to eviction in the current proceedings as they now stand. Thus the short constitutional issue is as to whether section 13(3A) of the basic Act to the extent it applies to pending litigation on the strength of section 13 of the Amending Act is violative of articles 14 and 19(1)(f) of the Constitution, weapons relied upon for the attack before the High Court, and here. We will proceed to consider the constitutional vulnerability of this limb of the protective legislation. By way of anticipating our conclusion we may also pose the problem whether sections 1 3 and 4 of the Amendment Act can be validly implemented vis a vis pending actions in any other just manner which will preserve the additional protection, minimise multiplicity of litigation and make law and justice bedfellows in the &hanged statutory circumstances. Some background observations to appreciate the contest in court are necessary. No social realist will deny the frightful dimensions of the problem of homeless families and precarious tenancies; and if the Directive Principles of State Policy are not to be dismissed by the masses as a 'teasing illusion and promise of unreality ', curtailment, in public interest, of such extreme rights of the landlord as are 'red in tooth and claw ' is a constitutional compulsion. The Court, informed by this sore economic situation and reinforced by the initial presumption of constitutionality, hesitates to strike a socially beneficial statute dead, leading to escalation of the mischief to suppress which the House legislated unless, of course, a plain breach of the fundamental right of the citizen is manifest. The perspective of the amending Act is sketched by the High Court in lurid language : "The scarcity of accommodation is a burning problem, not only of the State of West Bengal but of the other States as well. Keeping pace with the needs of the gradually swelling population of West Bengal, new buildings have not been built owing to abnormal high price of land and materials. A large majority of the people of West Bengal live in those premises at the mercy of the landlords. " The explosive import of neglecting such a distressing urban development reasonably obliges the State to impose drastic restrictions on landlords ' right to property. And when circumvention of wholesome legal inhibitions are practised on a large scale the new challenge is met by clothing the law with more effective amount and that is the rationale of the Amendment Act. The learned Judges rightly refer to the legislative proceedings, notorious common knowledge and other relevant factors properly brought to their ken. The 'sound proof theory ' of ignoring voices from parliamentary debates, once sanctified by British tradition, has been replaced by the more legally realistic and socially responsible canon of listening to the legislative authors when their artifact is being interpreted We agree with the High Court when it observes : "Proceedings of legislature can be referred to for the limited purpose of ascertaining the conditions, prevailing at 781 or about the time of the enactment in question, which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil, sought to be remedied. In the Statement of Objects and Reasons of the West Bengal Premises Tenancy (Second Amendment) Bill, 1969, it is stated that it has been consider necessary that some more reliefs should be given to the tenants against eviction. It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many : there are landlords of different kinds : there is one class original owners who are the old inhabitants of the city : these owner landlords are Dot affluent: they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the, grounds of eviction, namely, of the landlords and for the purpose of building and rebuilding, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase. On the above two grounds and for that purpose, the said classification has been made. " The conclusion of the Court, crystellised in the following words, commends itself to us : "Taking an overall view of the various considerations, the statement of, the Minister, the objects of the Bill, matters of common knowledge and state of facts, existing at the time of the legislation, it may be well conceived that underlying policy and objects of the amended provision is to give more protection to the tenants against eviction and the classification of landlords into owner landlords and transfereelandlords is based upon a rational and intelligible differentia and we hold accordingly. " Proceeding to examine the limited attack on section 13(3A) of the basic Act read with section 13 of the Amending Act, we have to remember die comity of constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. (See: The State of Bombay vs R. M. D. Chamar baguwala(1) and Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar & Others(2). Some Courts have gone, to the extent of holding that "there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and 'to doubt the constitutionality of a law is to resolve it in, favour of its validity. "(3) Indeed, the Legis (1) ; (2) ; (3) Constitutional law of India by H. M. Seervai p 54 vol. 1. 782 lature owes it to the Court to make like respectful presumptions. We therefore view the provision impugned through a socially constructive, not legally captious, microscope to discover glaring unconstitutional infirmity, if any, and not chase every chance possibility of speculative, thought which may vitiate the law. Stray misfortunes when laws affecting large chunks of the community are enacted are inevitable and the respondents before us may perhaps belong to that category. Social legislation without tears, affecting vested rights, is impossible. Statutory construction has a benignant sensitivity and we are satisfied the High Court, in substantially upholding the Amendment Act, has done right, but in striking down the retrospective portion of the section has stumbled into a specious error. It is helpful to reproduce the relevant portion of section 13 of the basic Act in its unamended state and the amendments dovetailed into it by the 1969 Act, The so called 'retrospectivity ' of this provision has been anathematised by the respondent landlords and annulled by the High Court : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: unamended cl. (f) : where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held; cls. (f) and (ff) substituted therefor (f)subject to the provisions of sub section (3A), and section 18A, where the premises are reasonably required by the landlord for purposes of building or re building or for making thereto substantial additions or alterations and such building or rebuilding or additions or alterations cannot he carried out without the premises being vacated, (ff) subject to the provisions of subsection (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation, Sub section (3A) newly introduced. 13(3A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be insti 78 3 tuted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest : Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being beard, permits, by order, the institution of the suit on the ground that the building or rebuilding, or the additions or alteration, as the case may be, are necessary to make the premises safe for human habitation. " Once the substantive restriction super added by section 13(3A) is held valid, we have to focus attention only on the extension of the new ban to pending proceedings. That legislative competence to enact retroactively exists is trite law and we have only to test its validity on the touchstone of articles 14 and 19 (1) (f) pressed into service before us. Law is a social science and constitutionality turns not on abstract principles or rigid legal canons but concrete realities and given conditions; for the rule of law stems from the rule of life. We emphasize this facet of sociological jurisprudence only because the High Court has struck down section 13 of the Amendment Act on surmises, possi bilities and may be rather than on study of actualities and proof of the nature, number and age of pending litigations caught in the net of the retrospective clause. Judges act not by hunch but on hard facts properly brought on record and sufficiently strong to rebuff the initial presumption of constitutionality of legislation. Nor is the Court a third Chamber of the House to weigh whether it should legislate retrospectively or draft the clause differently. We find no foundation for the large assumptions made by the High Court and duly repeated before us by counsel that there may be cases of ejectment instituted prior to 1956 or that a number of suits and decrees perhaps decades old will unjustly be nullified by the previous operation of the new ban. Recondite instances and casual hardships cannot deflect constitutional construction of social legislation, if the main thrust of the statute relates to a real social evil of dimensions deserving to be antidoted by antedated legislative remedy. In the present case, indubitably the State was faced with a new, insidious and considerable situation of exploitation, undermining the security of tenancy conferred by the basic Act. A large number of original landowners living in their own home could not, under the basic Act, claim recovery of possession, being occupants of their own houses. Likewise, they could not urge the ground of recovery for rebuilding, not being financially able to invest on such a costly venture. They had to look up to modest old time rentals as the only source of return and lest the penurious tenantry desperately inhabiting little tenements be forced to pay extortionate rents the rent control law of 1956 froze the rates at the 1940 level with gentle increases as provided therein. However, for now buildings to be constructed 784 special incentive provision was made by deeming the contract rent as fair rent, thus ensuring a high return on building investment. The social upshot of this scheme was that the old landlords found their ownership a poor return investment, saw a new class of wealthier investors streaming into cities and towns ready to buy the premises evict old tenants, re let on rack rents or re build and reap a rich return. They had no buildings of their own and could prove plans to rebuild, thus disarming the nonevictability provision of section 13 of the basic Act. The transferees could thus get decrees for eviction under the basic Act. Naturally, transfers of buildings to this somewhat speculating class increased and the spectacle of eviction litigation ' or potential eviction proceedings was projected on the urban scene. The Legislature promptly reacted by the Amendment Act to rescue the lessees by clamping down new restrictions by way of section 13 (3A). A three year moratorium was given to the tenants from being hunted out of their homesteads by imposing a ban on institution of suits for eviction by transferee landlords. This would both disenchant speculative purchases and provide occupants time to seek alternative housing. Presumably, these objects inspired the law makers to extend the embargo backwards to pending eviction proceedings. Quite conceivably, the tendency to create a transferee class of real estate owners gradually gathered in volume and showed up in rashes of pending actions. When Government was alerted amending legislation was proposed. Unfortunately, the State 's legal wing has failed to protect, in Court the class for whose benefit the amending law was made by placing luscent social or statistical materials on these aspect . As earlier stated by us, Government have a duty, where social legislation to protect the weak are challenged, to exhibit the same activism in the Halls of Court as in the Houses of Legislature. Failure in the former duty can be as bad as not promulgating the law. Not an elucidatory affidavit by the State nor even the Minister 's explanatory speech has been filed in this Court. We make these observations because of the handicaps we have faced and the little help on facts the State has given to sustain the legislation. The Calcutta High court has upheld the vires of sub section (3A) but invalidated its application to pending litigation. So the short issue is whether this projection into the past of the otherwise reasonable restriction on the right of eviction arbitrary, irrational, ultra vires ? If yes, the lethal sting of articles 14 and 19(1) (f) will deaden section 13 of the Amendment Act. And the High Court has held so on ,he latter Article. The prospective validity of the restriction under articles 14 and 19(1) (f), the High Court thinks, is vindicated by sound classification and sanctioned reasonably by the interest of the general public. Having regard to the policy of the legislation, the classification of landlords into two classes of owner landlords and transferee landlords and the imposition of an embargo on the latter minacious class against bringing eviction suits within three years of purchase passes the dual tests of reasonable classification and the differentia having a rational nexus with the statutory object. Therefore, the High Court had no hesitation and we totally concur that the provision is 78 5 impregnable. The controversy rages round giving effect to these stringent restraints newly enacted on earlier legal actions. This, it is contended, is a horrendous invasion of property right,; and unjust anteriority which hits innocent plaintiffs whose, purchases were beyond three years. Before us respondents ' counsel have contended that article 14 is violated. by section 3 read with section 4 of the Amendment Act although the high Court has negatived this submission thus : "We have carefully considered the arguments advanced by the learned counsel and we are of the Opinion that the retrospective operation of sub section (3A) on pending suits and appeals does not offend Article 14 of the Constitution. " Since the argument, dressed, differently, has been urged before us again we will briefly deal with it, agreeing as we do with the High Court. Plaintiffs whose transfers are twenty years ago or two years before the Act, are lugged together and subjected to the same ban if their suits were instituted within three years of the transfer. This blanket ban regardless of the varying periods which have elapsed after the transfers and before the Act was passed was unequal treatment or rather harshly equal subjection to restriction of plainly unequally situated transferees. There is seeming attractiveness in this presentation. But Courts are concerned not how best to hammer out equal justice but to oversee whether the classification is without rational basis unrelated to the object of the Act. That is why we are confined to check whether the reasoning on this aspect adopted by the High Court is not tenable. We may or may not disagree with the wisdom of the Legislature in the grouping adopted or hold views about fairer ways of treatment. But our powers are judicial, not legislative and arbitrariness and irrationality are not writ large in the method of differentiation the legislature has here chosen. In the words of A. K. Mukuherji J : "In the instant case, suits of the affected transfereelandlords may be regarded as a sub class, within a class and, if within the said sub class, the suits are not differently treated, they will not be hit by Article 14. The persons affected are transferee landlords who instituted their suits within three years of their purchase and they form a separate class and, among the suits of that 'affected class ', there is no discrimination. The law applied equally with respect to the pending suits with regard to this affected class. " Some hardship is bound to occur peripherally in any mode of classification and a few hard cases (we have not been shown whether many have been struck by this pattern of grouping) cannot guide the Court in upsetting legislative compartmentalisation. The next attack by the respondents is that the deprivation of the right to sue is absurdly beyond the object of the Act when applied to pending cases where the transfers took place more than three years before the Act. Were we draftsmen of legislation, may be counsel 's submission could have had more potency. But our limited power is to 786 examine the reasonableness of the restriction, not by substituting our personal notions but by interfering if the Legislature has gone haywire in unreasonably hamstringing transferee landlords by dismissing suits brought long before the legislative bill was in the womb of time. In an earlier case this Court observed(1) "Right at the, threshold we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States vs Butter ; 80 Law. Ed. 477 thus: The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts ire concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government. " In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review." The High Court has assumed that even proceedings started prior to 1956 may be affected. This, admittedly, is wrong as pre basic Act suits will be governed by the, then law as provided in section 40 and the Amendment Act amends only the 1956 Act. It may also be conceded that in both the appeals before us, thanks to Indian longevity of litigation, more than three years from the date of transfer in favour of the plaintiff has passed and thus the spirit of the protection in that sense is fulfilled. Indeed, counsel for the. respondents urged that the validation of the retrospective limb of the law would only drive the parties to fresh suits, thus promoting multiplicity of suits ruinous to both sides with no social gain. There is force in this submission. Its relevance to decide, the constitutional issue is doubtful but its influence on our ultimate solution in this case, as will be seen later, is undeniable. A closeup of the social milieu leading up to the enactment in 1969 of the Amendment Act is useful to identify the substantial, mischief the law was intended to overpower. Did that evil reasonably necessitate, for effectual implementation of purpose, the extension of the new law to pending suits and appeals ? How many suits, appeals and second appeals by transferees within the three year belt were pending? How long had they been so pending? Were there only stray eviction cases of long ago and was it feasible or necessary to (1) Murthy Match Works vs Asst. Collector of Central Excise, A.T.R. 1974 8.C. 497, 503. 787 draw a line somewhere to prevent injustice to non speculative and old time buyers of buildings without impairing the limited immunity meant for tenants and intended against now realty investors ? On these facts the State has sat with folded hands and we have been thrown on our own to scan and sustain or strike down. But here arises the significance of initial presumption of constitutionality. The High Court has made short shrift of this plea thus : "There is nothing on the record to show that the mischief, sought So be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin. In this context, the application of the restriction on the omnibus scale to ill pending suits and appeals would smack of unreasonableness. " Who has the onus to place compelling facts, except in flagrant cases of gross unreasonableness, to establish excessiveness, or perversity, in the restriction imposed by the statute? Long ago in Dalmia 's Case(1) this Court held that "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"; and 'that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ," If nothing is placed on record by the challengers the verdict ordinarily goes against them. Moreover, what is the evil corrected by the Amendment Act? The influx of a transferee class of evictors of tenants and institution of litigation to eject and rack rent or re build to make larger profits. Apparently, the inflow of such suits must have been swelling slowly over the years and when the stream became a flood the Legislature rushed with an amending bill. Had it made the law merely prospective, those who bad, in numbers, already gone to Court and induced legislative attention would have escaped the inhibition. This would defeat the object and so the application of the additional ban to Pending actions could not be called unreasonable. To omit to do so would have been unreasonable folly. The question is whether those cases which were filed several years ago should have been carved out of the category of transferees hit by the Act ? Where do you draw the line ? When did the evil assume proportions ? These are best left to legislative wisdom and not court 's commonsense although there may be grievances for some innocent transferees. (1) ; , 297 propositions (b) and (c). 788 If this be the paradigm of judicial review of constitutionality, we have to ignore exceptional cases which suffer misfortune unwittingly. The law is made for the bulk of the community to produce social justice and isolated instances of unintended injury are inevitable martyrs for the common good since God Himself has failed to make perfect laws and perfect justice, Freaks have to be accepted by the victims rightly or wrongly as forensic fate: Not that it should be so but human infallibility being unattainable, easily the next best in social justice is to promote the public weal sacrificing some unmerited private hurt as unfortunate but unavoidable. It must be conceded that prima facie the two landlord respondent 's had purchased the buildings in the early sixties and three time three years or more have now passed since that date. But while considering constitutionality can we be moved by such accidental instances ? No. The substantial evil has been substantially met by a broad application of the new ban to pending proceedings. We see in the Amendment Act no violation of article 19(1) (f) read with 19(5). The same High Court, in a later case Kalyani Dutt vs Pramila Bala Dassi(1) came to the same conclusion by what it called 'independently considering the question '. We discern nothing substantially different in the analysis or approach to merit review of our result. We hold section 13 of the Amendment Act valid and repel the vice of unreasonableness discovered in both the reported rulings of the High Court. And if reasonable interpretation can avoid invalidation, it is surely preferable. Here humanist considerations, public policy and statutory purpose may provide guidelines of construction within reasonable limits. Section 13 of the Amendment Act reads: "13. Retrospective effect. The amendments made to the said Act by section 4, 7, 8 and 9 of this Act shall have effect in respect of suits including appeals which are pending at the date of commencement of this Act. " The Court is called upon 'to give effect to section 4. of this new Act. ' Section 4 introduced amendments in section 13 of the basic Act which we have set out earlier. There is no doubt that the purpose of the law is to interdict, for a spell of three years, institution of suits for eviction on grounds (f) and (ff) of sub section Section 13 of the Amending Act makes it expressly applicable to pending actions, so much so the operation of the prohibition is not simply prospective as in the Kerala case cited before, us (Nealakandhayya Fillai vs Sankaran(2). Section 13, fairly read, directs that the amendment made by section 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. We are therefore bound to give effect to section 4 in pending actions, regardless of isolated anomalies and individual hardships. As earlier noticed, section 4 has two limbs. It amends section 13 of the basic Act by substituting two new clauses (f) and (ff) in place of the old clause (f) of sub section (1) of section 13 Secondly, it forbids, for a period of three years from the date of acquisition, suits by new acquirers of (1) I.L.R. (2) (1961) R.L.T. 755. 789 landlord 's interest in premises, for recovery of possession on any of the grounds mentioned in cl. (f) or cl. (ff) of sub section (1). The result of the= two mandatory provisions has to be clearly understood. For one thing although the old cl. (f) is substantially similar to the present cls. f) and (ff), the latter imposes more severe restrictions protecting the tenants. Much more has to be proved by the landlord now before he can get eviction than when he was called upon to under the earlier corresponding provision of the basic Act. Moreover, the three year prohibition against institution of the suit is altogether new. It follows, therefore, that on the present allegations and evidence the landlord may not get a decree, his suit having been instituted at a time when he could not have foreseen the subsequent enactment saddling him with new, conditions. We consider that where two interpretations are possible that which validates the statute and shortens litigation should be preferred to the one which invalidates or proliferates it. We are guided by that consideration in the interpretative process. We are satisfied further that originally brought in, is defective since it did not contain and ordinarily could not averments complying with the new cls. (f) and (ii) of sub section (1) of section 13 and we are making it effectively by construing the word 'institute ' in a natural and grammatical way. The suit is really instituted in compliance with cls. (f) and/or (ff) only when the new pleading is put in. The bigger roadblock in the way of the plaintiff is in a pending action lies in the prohibition of the institution of the suit within three years of the transfer from the landlord. Indeed, such prohibitions are common in rent control legislation as has been noticed by the Calcutta High Court and is found even in agrarian reforms laws (vide Malaber Tenancy Act, as amended by Act VII of 1954, Madras). Section 13 of the Amendment Act compels the postponement of the institution of the suit (including appeal) for a period of three years from the date of the transfer. In both the cases before us, the suits were instituted within the prohibited period of three years. The argument therefore is that the suits must be straightaway dismissed, the institution being invalid. We do not think that this consequence is inevitable. 'To institute, is 'to begin or commence ', in plain English. The question then is whether the suit can be said to begin on the date it was filed in 1961 or 1964 as the case may be. Here we have to notice a certain nice but real facet of sub section The prohibition clamped down by sub section (3A), carefully read, is on suits for recovery of possession by transferee landlords 'on any of the grounds mentioned in cl. (f) or cl. (ff) of subs.(1) '. Obviously the suits with which we are concerned are not for recovery on grounds contained in cis. (f) and (ff). They were based on the repealed cl. (f) of section 13 of the basic Act. Strictly speaking, sub section (3A) brought in by section 4 of the Amending Act applies only if (a) the suit is by a transferee landlord; b) it is for recovery of possession of premises and (c) the ground for recovery is what is mentioned in cl. (f) and cl. (ff) of sub section Undoubtedly the third condition is not fulfilled and there fore sub section (3A) is not attracted. This does not mean that the suit 790 can be proceeded with and decree for recovery passed, because section 13 of the basic Act contains a broad ban, on eviction in the following words : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises, shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (emphasis, ours) Since the new cls. (f) and (ff) are included by the Amendment Act in section 13 of the basic Act and since the suits we are concerned with, as they now stand, do not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in section 13 itself. A just resolution of this complex situation was put by us to counsel on both sides and the learned Advocate representing the State readily agreed that the policy of the legislation and the conditions in the Amendment Act would be fulfilled if the interpretation we proposed were to be accepted. We are satisfied that as far as possible courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the legislation, should be preferred to any literal, pendantic, legalistic or technically correct alternative. On this footing we are prepared to interpret section 13 of the Amendment Act and ,give effect to section 4 of that Act. How do we work it out ? We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under cls. (f) and/or (ff)_ of sub s.(1) if they so wish. On such pleading being filed we may legitimately bold that the transferee landlord institutes his suit on grounds mentioned in cls. (f) or (ff) of sub section (1) on that '.ate. It is only when he puts in such a pleading setting out the specific ground covered by sub section (3A) of section 13 that we can say he, has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored since that was not based on grounds covered by cls. (f) and/or (ff) and is not attracted by sub section (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these_grounds. In spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorpo rating amendments is the sacred requirement of the law. On the other hand, social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals. It thus follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending. or in appeal or second appeal, if that is pending. Thereupon, the opposite party. tenant, will be given fin opportunity to file his written statement and the Court 'Will dispose of it after giving both sides the right to lead 791 additional evidence. It may certainly, be open to the appellate Court either to take evidence directly or to call for a finding. Expeditious disposal of belated litigation will undoubtedly be a consideration with the court in exercising this discretion. The proviso to sub section (3A) can also be complied with if the plaintiff gets the permission of the Rent Controller in the manner laid down therein before filing his fresh pleading. We, are conscious that to shorten litigation we are straining language to the little extent of interpreting the expression 'institution of the suit ' as amounting to filing of fresh pleading. By this construction we do no violence to language but, on the other hand, promote public justice and social gain, without in the least imperiling the protection conferred by the Amendment Act. Ruinous protraction of litigation, whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicits wounds on society by sterile misuse of money. Tenant passengers who prolong their expensive flight on the litigation rocket, are buying tickets for financial crash, drugged though they be by the seeming blessings of law 's delays. Courts, by interpreting the expression 'institution of suits ' cannot authorize reincarnation, all over again, of litigation for eviction. We save the tenant by applying it to pending cases and save him also from litigative waste. This consideration is itself germane, to the larger concept of justice which it is the duty of Courts to promote. Law finds its finest hour when it speaks to justice on fair terms. In the present case our interpretative endeavour has been imbued with this spirit. In the process of interpretation where alternatives are possible ' the man in the law influences the law in the man may be and the construction on sections 4 and 13 of the Amendment Act herein adopted, we admit, appeals to us as more, humane. The calculus of statutory construction relating to complex problems of the community cannot be hide bound by orthodox text book canons. An obiter, maybe. More buildings is the real solution for dwelling shortage; freezing scarcer accommodation relieves for a little while. Tiger balm is no serious cure for brain turnover We make no more comments on the need for dynamic housing policies beyond statutory palliatives. These belong to legislative 'wisdom ' and administrative ,activism ' and not to judicial 'constitutionalism '. It was noticed in the course of arguments that a later Amending Act of 1970 purporting to give relief to tenants against whom decrees for eviction bad been passed but dispossession had not ensued, had been put on the statute book. It is surprising that counsel on either side did not choose to address us any arguments on the basis of those provisions. We therefore do not go into the impact of that Act on situations where eviction has been ordered by Courts. We therefore allow the appeals with costs but direct the High Court to dispose of the cases in the light of the directions and obser 792 vations we have made. It will be open to the, Court seised of the matter to direct, in its discretion, award of costs to be incurred hereafter. GOSWAMI, J.Civil Appeal No. 1304 of 1973 is by certificate granted by the Calcutta Hi Court and Civil Appeal No. 2063 of 1973 is by Special Leave of this Court. The first one arises out of Letters Patent Appeal No. 14 of 1969 of the Calcutta High Court dismissed on February 3, 1972, relying upon its earlier decision in Kalyani Dutt vs Pramila Bala Dassi since reported in I.L.R. (1972) 2 Calcutta 660. A preliminary question had arisen in connection with the aforesaid Letters Patent Appeal along with three other appeals at an earlier stage with regard to the constitutionality of section 13(3A) of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (briefly the Amendment Act). A Division Bench repelled the contention of the appellants in decision which has since been reported in A.I.R. (1971) Calcutta 331 (Sailendra Nath Ghosal & Ors. vs Sm. Ena Dutt & Others). The Division Bench had held that sub section (3A) of section 13 in so far as it was retrospective in operation was ultra vires Article 19(1) (f) of the Constitution on the ground of unreasonableness. Since, however, the Letters Patent Appeal was not completely disposed of, the bar of sub section (3A) was this time pleaded asserting that Article 19 was not at all attracted to the present case on the ground that the right of reversion of the landlord, namely, the right to recover possession of the property from the tenant, is not a right of property which is a condition precedent to the application of Article 19(1) (f) and consequently, the question as to the infringement of fundamental right did not at all rise and that there could not be, any scope for holding that the provision of sub section (3A) offended against Article 19(1)(f). This second contention which was allowed to be raised by the Letters Patent Bench was also repelled following its earlier decision in Kalyani Dults case (supra) disposed of on September 7, 1971. Civil Appeal No. 2063 of 1973 arises out of the decision of the High Court in Second Appeal No. 1193 of 1972 disposed of on 25th July, 1973 relying upon Sailendra Nath Ghosal 's case (supra) which is the subject matter of appeal in Civil Appeal No. 1304 of 1973. The history of tortuous litigation in both the appeals may also be noticed. In Civil Appeal No 1304 of 1973 the plaintiff (respondent herein) purchased the premises in suit on February 16, 1961. She instituted Title Suit No. 480 of 1961 in the court of Munsif of Sealdah, District 24 Pargana, for ejectment of the defendant, on July 24, 1961. The suit was decreed by the Munsif on July 21, 1964, but was dismissed by the lower appellate court on May 17, 1965. On second appeal at the instance of the plaintiff, the High Court framed an additional issue and remanded the suit to ram a finding on the same. On receipt of the finding of the court below, the learned single Judge of the High Court, dismissed the second appeal and granted 793 leave to a Letters Patent Appeal. That appeal was dismissed on February 3, 1972. The High Court granted certificate to appeal against that decision to this Court on May 24, 1973, referring to the earlier certificate granted by that Court in Kalyani Dutt 's case (supra). That is how Civil Appeal No. 1304 of 1973 is now before us. The facts in Civil Appeal No. 2063 of 1973 are these. The property in suit was purchased by the plaintiff (respondent herein) on February 7, 1964 and the eviction suit No. 76 of 1966 was instituted in February 1965. The suit was dismissed by the Trial Court on October 11, 1966. On appeal by the plaintiff, the Additional District Judge allowed the appeal on June 8, 1967, and remanded the suit for disposal after taking additional evidence. The Munsif thereafter decreed the plaintiff 's suit on December 23, 1968. On appeal by the defendant the Additional District Judge allowed the same and dismissed the suit on April 8, 1969. On plaintiff 's appeal to the High Court in Second Appeal No. 968 of 1969, the High Court allowed the same on April 3, 1971 and remanded the suit to the Munsif for retrial. The Munsif again dismissed the plaintiff 's suit on September 13, 1971. On appeal by the plaintiff the Additional District Judge allowed the same and decreed the suit on April 29, 1972. The High Court on appeal by the defendant dismissed the second Appeal on July 25, 1973, relying upon Salindra Nath Ghosal 's case (supra) disposed of on January 28, 1971. The defendant then obtained special leave. Thus the life of litigation in Civil Appeal No. 1304 of 1973 is now in the fourteenth year after purchase of the premises by the plaintiff six months earlier. The second one is a decade old; the property having been purchased about a year earlier. Both the appeals were argued together and will be governed by this common judgment. The suits in both the appeals are by what has come to be known as transferee landlords. They have instituted suits in one case within six months of the purchase in 1961 and in the other within one year of the purchase in 1965. During the long pendency of the litigation the West Bengal Premises Tenancy (Second Amendment) Act was passed which came into force on November 14, 1969. and section 4, inter alia, was made applicable to pending suits including appeals. It amended the West Bengal Premises Tenancy Act, 1956 (West Bengal Act XII of 1956) (briefly the Original Act). Section 4 of the Amendment Act introduced the following changes in section 13 of Section 13(1) (f) of the Original Act stood as follows the Original Act : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises %hall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f)Where the premises are reasonably required by the landlord either for purposes of building or rebuilding; or 4 L346Sup. CI/75 794 for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held". After the amendment of section 13 by section 4 of the Amendment Act clause (f) was split up into two clauses (f) and (ff) which read as under : "(f) Subject to the provisions of,sub section (3A) and section 18A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or re building, or additions or alterations. cannot be carried out Without the premises being vacated; (ff) Subject to the provisions of sub section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation". In addition, section 4 of the Amendment Act introduced a new subsection (3A) which reads as follows : "Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest; Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub section (1) before the expiration of the said period of three years if the Controller on the application of landlord and after giving the tenant an opportunity of being heard, permits, by order, the institution of the suit on the ground that the building or re building or the additions, or alterations, as the case may be, are necessary to make the premises safe for human habitation". It should be noted that the grounds for ejectment in the earlier sub section (f) ,ire the same as the new grounds in clauses (f) and (ff) except for some additional restrictions. The common grounds for eviction are, broadly speaking, reasonable requirement for the Purpose of building or rebuilding, etc. [sub clause (f)] and reasonable requirement for occupation by the landlord, etc. [sub clause (ff)]. There is, there fore, no particular significance to the mention of " grounds" in clause (f) or clause (ff) of subsection (1) in subsection (3A). ,Section 13 of the Amendment Act which is the bone of contention grants retrospectivity to section 4 of the Amendment Act and, therefore, necessarily to sub section (3A) and section 13(1)(f)(ff). The grievance centres round retrospectivity of sub section (3A) and 795 section 13(1)(f) and (ff) made applicable by force of section 13 of the Amendment Act to suits and appeals pending on the commencement of the Act. It may be in order first to deal with the question of retrospectivily of sub section (3A) which is the principal ground of attack in these appeals. Section 13 of the Amendment Act provides that. effect should be given to section 4 of the Amendment Act in pending suits including appeal on the date of the commencement of the Act. The suits of the particular category by transferee landlords, therefore, could be pending on commencement of the Amendment Act and these may have been instituted several years prior to the Amendment Act. There may also be appeals pending in different appellate courts against decrees in such suits. The appeals necessarily have to be understood as appeals arising out of suits instituted within the three years ' ban. The tenants are now permitted to take objection on the score of contravention of section 13(3A), before the courts either in a pending suit or in a pending appeal against decrees in such suits and the point for consideration then would be whether such a suit was instituted within three years ' ban and the appeal was pending against such a banned suit. When section 13 of the Amendment Act provides that section 4 therein has to be given effect in pending suits including appeals, effect has to be given by the courts. Now how will effect be given to section 13(3A) ? Retrospectivity to be given under section 13 of the Amendment Act to section 4 broadly requires compliance as follows (1) that no suit for eviction by a transferee landlord shall be instituted within three years of his acquisition of the premises; (2) if eviction is sought on the ground under section 13(1)(f) of the Amendment Act, an additional restriction is put, namely, that "such building or rebuilding or additions or alterations cannot be carried out without the premises being vacated"; (3) if eviction is sought on the ground under section 13(1)(ff), a further restriction is put upon the right of the landlord to evict, viz., that "the landlord or such person is not in possession of any reasonably suitable accommodation". Under proviso to section 13(3A) a transferee landlord can, however, institute a suit within three years ' ban provided he obtains prior permission from me Controller who on an application by the landlord and after hearing the parties may decide whether permission should be given or not. Prime facie, a suit which had already been instituted prior to the Amendment Act would not come within the mischief of section 13(3A) since this sub section, in terms, prohibits only institution of suits and does not provide for dismissal of suits already instituted. Similarly while there is a relaxation in favour of a transferee landlord under the proviso to obtain permission from the Controller this bene fit is out of the way even in a genuine case where the suit had already 796 been instituted within three years of purchase and the same or an appeal therefrom is now pending after the passing of the Amendment Act. In this regard also it appears sub section (3A) is not intended to be attracted to suits which were already instituted prior to the Amendment Act. But as will be seen hereafter the above position is altered by the express provision of section 13 of the Amendment Act whereby it is intended that the court should give retrospectivity, inter alia, to section 4 of the Amendment Act. On the terms of only section 13 (3A) it is difficult to hold that it would bring old sections within the mischief of section 13 (3A) which imposes a ban expressly on institution of suits within three years of the acquisition of ownership of the premises subject to the relaxation contained in the proviso thereto. This being the correct interpretation of sub section (3A), taken by itself, what is the effect of section 13 of the Amendment Act upon this provision? Section 13 of the Amendment Act in seeking to give retrospective effect to sub section (3A) does exactly what sub section (3A) by itself contra indicates. The first part of section 13(3A) which provides for a ban against institution of suits for eviction within three years of acquisition of the premises must be given effect to under section 13 of the Amendment Act in pending suits and in pending appeals arising out of the decrees passed in such suits provided the former had been instituted within the period of the ban. If, therefore, after the Amendment Act it is found in a pending suit or in a pending appeal that the particular suit was instituted within the three years ' ban the same will have to be dismissed and only in that way the court will be able to give effect to sub section (3A). With regard to the proviso of subsection (3A), when the ground of eviction is relatable to section 13(1)(f) of the Amendment Act the court will have to dismiss the suit in absence of the requisite permission. That being the practical result of restrospectivity given to subsection (3A), is that sub section, in so far as it is retrospective, violative of Article 19(1)(f) of the Constitution? That takes us to the object and purpose of the Amendment Act. The Statement of Objects and Reasons as quoted in Kalyani Dutt 's case (supra) is as follows "It has been considered necessary that some more relief should be given to the tenants against eviction, that the necessity of tender of rent to the landlord every time the rent is deposited with the Controller during a continuous period should be dispensed with, that the interests of the residents of hotels and lodging houses should be safeguarded and that the penalties for contravention of some of the provisions of the West Bengal Premises Tenancy Act, 1956, should be made more stringent". In the earlier judgment of the High Court which is also the subject matter of Civil Appeal No. 1304 of 1973 the High Court referred to the statement of the Minister at the time of piloting of the Bill in the following words: 797 "It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many: there is one class original owners who are the old inhabitants of the city; these owner landlords are not affluent; they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the grounds of eviction, namely, requirement of the premises for own use of the landlords and for the purpose of building and re building, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase". The High Court also observed further that "there is nothing on the record to show that the mischief, sought to be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin". Again in Kalyani Dutt 's case (supra) the High Court in para 27 observed that "such suits are not many and at the same time most of them are pending for more than ten years". The materials relied upon by the High Court stand uncontradicted by any affidavit before US. On the above materials it is safe to hold that the main object of the Amendment Actis to counteract the "recent" mischief of circumvention of theprovisions of the original Act in order to evict tenants on even bona fide requirements specified under the law of device of transfer of premises held under the occupation of tenants. Although the Amendment Act has not completely barred institutions of suits by transferee landlords postponement of litigation for a period of three years from acquisition of the premises was provided for under subsection (3A). This had a twofold purpose, namely, to enable tenants a reasonable respite to arrange their affairs and also to discourage speculative acquisitions with an ulterior motive. This salutary pro vision for the general body of tenants cannot be called unreasonable. But the question is whether by applying the provision to pending suits and appeals has that object been achieved in the interest of the general body of tenants which would certainly constitute the general public within the meaning of clause 5 of Article 19? From the fact ,; and circumstances extra fed above from the two judgments of the High Court. it is not possible to bold that the interest of the general body of tenants would be served by application of sub section (3A) to pending suits and appeals. If the mischief was of "recent" origin, there is no reason to overshoot the mark and outstretch the long rope of the law beyond the 798 requirements of the situation. It is clear that in trying to include old actions that may be surviving in courts, per chance, because of laws ' proverbial delay, section 13 of the Amendment Act has gone far in excess of the actual needs of the time and problems and the provisions thereof cannot be said to impose a reasonable restriction on the right of the transferee landlords, albeit a well defined class, amongst tile landlords, to hold and enjoy their property in the interest of the general public. Such transferee landlords with pending old sections in suits or in appeals are, as observed by the High Court, not likely to be of a large number and necessarily so the tenants of such a sub sec class. It is not in the general interest of the large body of tenants to impose such restrictions on a few transfree landlords of this sub class subject to unbearable delay in litigation, understandably not on their own account. If relief in the shape of postponement of a landlord 's suit were the object of sub section (3A) in giving retrospectivity to it, the law did not take count of the inevitable long delay that takes place in pending litigation of this type as a result of man made laws of procedure in courts such as has even been clearly demonstrated by the cases at hand. The law that misses its object cannot justify its existence. Besides, it will be a sterile relief if tenants have to face a fresh summons next day. Hard cases will be on both sides of the line. law contemplates in terms of generality and is not intended to hit a few individuals by making invidious distinction. Article 19 of the Constitution confers protection of rights specified therein belonging to all citizens. Any individual citizen may complain of encroachment of his rights and freedom guaranteed under the Article. Law 's encroachment upon such rights and freedom of citizens can survive challenge if it passes the tests laid down in the six saving clauses of Article 19. Coming now to article 19(1)(f), with which we are concerned in these appeals, the said provision confers upon each individual citizen the right to acquire, hold and dispose of property, This right is subject to clause (5) which we may read so far as material for our purpose: "Nothing in sub clauses (d), (e) and (f) of the said clause shall . prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses . in the interests of the general public. . Even a single citizen may complain against violation of his fundamental rights under Article 19 (1) (f) and his vindication of his right may be defeated only if the impugned infringement brought upon by the law can be considered as a reasonable restriction and the ,aid restriction is also in the interests of the general public. It is manifest, therefore, under the Constitution. that an individual 's right will have to yield to the common weal of the general community. That general community may be in broad segments, but even then must form a class as a whole. A few individuals cannot take the place of a class and for the matter of that the general public In the present case the particular relief contemplated by the Amendment Act is in favour 799 of tenants in general and the restriction under sub section (3A) must ,be viewed in that context. It cannot be said that the legislature in applying sub section (3A) restrospectively has achieved that avowed object at all. The matter would have been different it, in view of any prevailing conditions, a reasonable date for giving retrospective effect were fixed under the law in the light of the known mischief. In its. absence, applicability of the blanket ban to pending suits and appeals cannot be said to be a reasonable restriction in the interests of the general public. It may help a few tenants in litigation but will prejudice the right of transferee landlords locked up in old and costly litigation. The gain of the few as opposed to the general public cannot be the touchstone for justifying reasonableness of the restriction imposed on the rights of the transferee landlords in applying subsection (3A) to pending suits and appeals. In the social combat between the interests of a few and the general welfare of the community the latter is the clinching factor to be reckoned and hard cases of a few individuals cannot be assigned a higher place and status than they deserve to the detriment of the fundamental rights of even a single individual. Therefore, the retrospectivity so far as sub section (3A) is concerned with regard to institution of suits made applicable to pending suits and. appeals is clearly very wide of a reasonable mark and is, thus, an imposition of an unreasonable restriction on the rights of the transferee landlords in pending suits which had been instituted prior to the Amendment Act and in appeals arising therefrom and it is not saved by the protective clause (5) of Article 19 of the Constitution. Sub section (3A) so far as it is retrospective and as such applicable to pending suits including appeal is ultra vires Article 19 (1)(f) of the Constitution. The provision is valid only prospectively. So far as the retrospectivity of section 13(1)(f) and (ff), the position is entirely different. Clearly further reliefs have been sought to be given to the tenants as a class by these provisions in the Amendment Act. These further reliefs are in the general interests of tenants and can be applied without any difficulty to pending suits including appears. There is nothing unreasonable about such a retrospectivity in applying these provisions for the general welfare of tenants in securing for them a safe and sure tenure as far as practicable untrammelled by inconvenient litigation. It is well established that the legislature in enacting laws can legislate prospectively as well as retrospectively. Section 13(1)(f) and (ff) are, therefore, not ultra vires Article 19(1) (f) of the Constitution. With regard to another contention of the appellants that the right of tile landlords that is affected by sub section (3A) is only a mere right to sue and at best a right of reversion and hence it is not a right to property under Article 19(1)(f) of the Constitution, it is sufficient to state that the question is covered by two decisions of this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(1) and Swami (1) ; 800 Motor Transport (P) Limited and Another vs Sri Sankaraswamigal Butt and Another(1). The right to own and hold property in order to make an effective right under the Constitution must include tine right to possession of the property including the right to evict tenants in accordance with law. The submission is, therefore, without any force. The position, therefore, is that in a pending suit or even in a pending appeal a landlord may be given an opportunity to adduce evidence to establish such of the new requirements in 13(1) (f) or (ff) as are relevant to the proceedings. In that case the tenant will have also an opportunity to produce evidence in rebuttal. If the matter arises in a pending suit, it will be disposed of by the trial court. If, however, the matter arises in appeal, it will be open to the appellate court, in order to shorten the life of litigation, to remand the matter to the appropriate court to return a finding on such additional issues as may be framed to meet the requirements of (f) and/or (ff), as the case may be, under order 41, rule 25, Civil Procedure Code. In the result these appeals are partly allowed. The judgment of the High Court with regard to invalidity of sub section (3A) so far as it is retrospective and applicable to pending suits and appeals is upheld. The orders dismissing the appeals are, however, set aside and the appeals are remanded to the High Court for disposal in the light, of the observations with reference to section 13(1)(f) and/or (f) whichever is applicable. The landlords may now be given by the High Court an opportunity, if they so wish, to adduce evidence with regard to such further requirements under (f) and/or (ff) as may be applicable and the High Court will call for a finding from the appropriate court in that behalf and thereafter dispose of the appeals on merits. Since success is shared, there will be no orders as to costs in these appeals. ORDER In accordance with the majority judgment, the appeals are allowed with costs; the cases are remanded to the High Court, and the High Court is directed to dispose of the case in the light of the directions and observations made in the majority judgment. It will be open to the Court seised of the matter to direct, in its discretion, amount of costs to be incurred hereafter. P.B.R. (1) [1963] Supp. 1 S.C.R. 282.

Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956 Act XII of 1956) enacted that no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against the tenants except among others, on the ground that the premises are reasonably required by the landlord either for the purpose of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held. Section 13(4) of the Act provides that where a landlord requires the premises on any of the grounds mentioned in cl. (1)(f) and the Court is of opinion that such requirement may be substantially satisfied by ejecting the tenant from a part only of the premises the Court shall pass a decree accordingly. In 1969 the Act was amended by West Bengal Premises Tenancy (Second Amendment) Act. Section 13 of the original Act was amended by introducing sub section (3A) in it. This sub section prohibits institution of a suit for ejectment of a tenant by a landlord who has purchased the premises for his own use within three years of the purchase. The Amending Act also enacted that the said Act shall apply to suits and appeals, which are pending at the date of the commencement of the Act. The respondent purchased the suit premises in which the appellant was a tenant and instituted a suit for ejectment of the tenant under s.13(1)(f) of the original Act. The suit was decreed by the lower court and affirmed by the lower appellate court. A single Judge of the High Court dismissed the appeal. When the Letters Patent Appeal was pending before the High Court, the Amending Act of 1969 was passed, whereupon, the tenant appellant invoked the provisions of the new sub sec. (3A) and contended that since the landlord had instituted a suit the ejectment within three years of the purchase, the suit should be dismissed. The High Court held that s.3A was valid prospectively but that the restriction imposed by the sub section. giving it retrospective effect, was violative of article 1(1) (f) of the Constitution. Per Beg and Krishna Iyer, JJ: Allowing the appeals and remitting the case to the High Court, HELD : (1) (a) There is no violation of article 19(1) (f) read with article 19(5) of the Constitution in the Amending Act, and s.13 of the original Act, as amended is valid. The evil corrected by the Amendment Act is to stop the influx of a transferee class of evictors of tenants and institution of litigation to eject and rack rent or re build to make large profits. Apparently the inflow of such suits must have been swelling slowly over the years and when the stream became a flood the Legislature rushed with an amending bill. Had it made the law merely prospective, those who had, in numbers, already gone to Court and induced legislative attention would have escaped the inhibition. This would defeat the object and so the application of the additional ban to Pending actions could not be called unreasonable. There is no foundation for the assumptions made by the High Court that there may be cases of ejectment instituted prior to 1956 or that a number of suits and decrees, perhaps decades old. will unjustly be nullified by the previous operation of the new ban. Recondite instances and casual hardships cannot deflect constitutional construction of social legislation, 775 if the main thrust of the statute relates to a real social evil of dimensions deserving to be antidoted by antedated legislative remedy. Questions such as whether those cases which were filed several years ago should have been carved out of the category of transferees hit by the Act, and at what point of time the evil assumed proportions were best left to legislative wisdom and not to courts commonsense. [788C D; 787F G; 783F; 787H] In the instant case the two landlord respondents had purchased the buildings in the early sixties, but while considering the constitutionality the Court would not be moved by such accidental instances. The substantial evil has been substantially met by a broad application of the new ban to pending proceedings. [788C] Section 13. fairly read, directs that the amendment made by section 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. The Court is, therefore, bound to give effect to section 4 in pending actions regardless of isolated anomalies and individual hardships. [788G] (b)Where two interpretations are possible that which validates the statute and shortens litigation should be preferred to the one which invalidates or proliferates it. Although the old cl. (f) is substantially similar to the present cls.(f) and (ff) the latter imposes more severe restrictions protecting the tenants. Much more has to be proved by the landlord now before he can get eviction than when he was called upon to under the earlier corresponding provision of the basic Act. Moreover, the three year prohibition against institution of the suit is altogether new. It follows, therefore, that on the present allegation and evidence the landlord may not get a decree, his suit having been instituted at a; time when he could not have foreseen the subsequent enactment saddling him with new conditions. [789C; 789B] Though therefore, the suit, as originally brought in, would be defective since it did not and could not contain the averments complying with the new cls. (f) and (ff) of section 13(1) it is made effective by construing the term 'institute ' in a natural and grammatical way. [789D] (c) 'To institute is 'to begin or commence '. The prohibition clamped down by sub section (3A), carefully read, is on suits for recovery of possession by transferee landlords on any of the grounds mentioned in cl. (f) Qr cl. (ff) of sub section (1). [789G] In the instant case the suits were not for recovery on grounds contained in clauses (f) and (ff). They were based on the repealed cl.(f) of s.13 of the basic Act. Strictly speaking sub section (3A) brought in by section 4 of the Amending Act applies only if (a) the suit is by a transferee landlord; (b) it is for recovery of possession of premises; and (c) the ground for recovery is what is mentioned in cls. (f) and (ff) of sub section (1). Undoubtedly the third condition is not fulfilled and therefore sub section (3A) is not attracted. [789H] (d)But since the new cls.(f) and (ff) were included by the Amendment Act in s.13 of the basic Act and since the suits did not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in section 13 itself. [790C] Per Goswami, J : (1)(a) In trying to include old actions that may be surviving in courts because of laws ' proverbial delay section 13 of the Amended Act has gone far in excess of the actual needs of the time and problems and the provisions therefore cannot be said to impose a reasonable restriction on the right of the transferee landlords, albeit a well defined class amongst the landlords, to hold and enjoy their property in the interest of the general public. Such transferee landlords with pending old actions in suits or in appeals are not likely to be of a large number. The imposition of such restrictions on a few transferee landlords cannot be in the general interests of the large body of tenants. If relief in the shape of postponement of the landlord 's suit were the object of sub section (3A) in giving retrospectivity to it. the law did not take count of the inevitable long 776 delay that takes place in pending litigation as a result of man made laws of procedure in courts such as have been clearly demonstrated by the cases at hand. The lawthat misses its object cannot justify its existence. Besides it will be a sterilerelief if tenants have to face a fresh summons next days. [798A C] (b)Under the Constitution an individual 's right will have to yield to the commonweal of the general community, That general community may be in broad segments but even then must form a class as a whole. A few individuals cannot take the Place of a class and for the matter of that the general public. [798H] In the present case the relief contemplated by the Amendment Act is in favour of tenants in general and the restriction under sub section (3A) must be viewed in that context. It cannot be said that the legislature in applying sub section (3A) retrospectively has achieved that avowed object at all. The applicability of the blanket ban to pending suits and appeals cannot be said to be a reasonable restriction in ,he interest of general public. [799A B] (c)Sub section (3A) so far as it is retrospective and as such applicable to pending suits including appeals is ultra vires article 19(1) (f) of the Constitution. The provision is valid only prospectively. The retrospectivity so far as subsection (3A) in concerned with regard to institution of suits made applicable to pending suits and appeals is clearly very wide of a reasonable mark and is an imposition of an unreasonable restriction on the right of the transferee landlords in pending suits which had been instituted prior to the amendment Act and in appeals arising therefrom and it is not saved by the protective clause (5) of article 19 of the Constitution. [799D E] (2)On the terms of only section 13 (3A) it is difficult to hold that it would bring old actions within the mischief of section 13(3A) which imposes a ban expressly on institution of suits within three years of the acquisition of ownership of the premises subject to the relaxation contained in the proviso thereto. [796B C] (3)Section 13(1)(f) and (ff) are not ultra vires of article 19(1)(f) of the Constitution. Further reliefs have been sought to be given to the tenants as a class by these provisions in the Amendment Act. These further reliefs are in the general interests of tenants and can be applied without any difficulty, to pending suits including appeals. There is nothing unreasonable about such a retrospectivity in applying these provisions for the general welfare of tenants in securing for them asafe and sure tenure as far as practicable untrammelled by inconvenient litigation.[799F G] Arguments for theappellants In C.A. 2063/73 by P. C. Chatterjee There is no vestedright to eject on determination of the tenancy but it is conditioned by section 13, Cl. (a) to (k) and therefore right to eject is not vested in the landlord until a decree is passed. Upto that stage it is contingent depen ding on the satisfaction of cl. (a) to (k) of s.13. If there is no vested property right, no question of article 19(1)(f) of the Constitution will arise. By denying the right to eject for three years from the date of purchase the right to property is not restricted or burdened. The approach of the High Court of separately treating prospectivity and retrospectivity is not correct. The correct approach adopted by this Court is that in considering the reasonableness of any provision retrospectivity of the law is a factor to be considered. Retrospective operation is not bad because it covers a period of 10 years or so. For respondent (In C.A. 1304 of 1973.) The object of the new sub section (3A) being to give protection to tenants for a limited period of three years from the date of purchase of the premises by the landlord, by giving retrospective effect to ' the said sub section the period limited by the subsection cannot be enlarged. Therefore, s.13 of the Amending Act which gives retrospective effect to the said sub section (3A) should be construed in a manner so as to keep the effect of retrospectively within the period 777 limited by the said new sub section 3A. Sections 4 and 13 of the Amending Act have to be construed harmoniously keeping the object of the Act in view and in doing that if the court has to supply some words to make the meaning clear, it should prefer the construction which is more in consonance with reason and justice. at 745. The language of sub section 3A and the object and reason for introduction of the said sub section make it clear that Only Prospective effect could be given to the sub section and in any case its effect cannot go beyond three years of purchase of the premises by the landlord. If, s.13 of the Amending Act means that section 4 of the Amending Act applies to all pending suits including appeals filed by a transferee landlord after the principal Act came into force, then it is clearly violative of art 19(1)(f) of the Constitution. The High Court therefore, rightly struck down s.13 giving retrospective effect to section 4 of the , Act. Further no law can impose restrictions retrospectively on fundamental rights. Arguments for the respondent in C.A. No. 2063 of 1973. The impugned section cannot be so interpreted as to give it retrospective effect so as to bring within its mischief all suits and proceedings including appeals which may be pending since the enforcement of the Act. This Court can depart from the general rule to apply the law as it is on the date of institution of the suit and apply the law as on the date when the appeal comes up for disposal specially because no injustice is going to be caused between the parties and as such a course would avoid multiplicity of proceedings. Section 13 of the Amending Act is ultra vires of article 19, because, construed literally the section cannot give protection to such of the tenants against whom proceedings are pending for more than 10 years or so, a protection for a period more than what is envisaged by the Amending Act. This is clearly not what is intended or contemplated by the legislature. Giving retrospective effect to the section would only benefit a few and is not in the public interest of the tenants of the transferee landlords. The restriction is arbitrary and invades the right to property and is not saved by cl. (5) of article 19. The restriction is not reasonable.

minal Appeal No. 144 of 1962. Appeal by special leave from the judgment and order dated May 10, 1962, of the Patna High Court in Criminal Appeal No. 339 of 1961. B.K. P. Sinha and A. G. Ratnaparkhi, for the appellants. S.P. Varma, P. D. Menon and, B. N. Sachthey, for the respondent. December 6. The judgment of the Court was delivered by AYYANGAR, J. This appeal by special leave granted by us on September 7, 1962, raises for 747 consideration the proper construction of sections 6 and 11 of the (XX of 1958), hereinafter called the ,Act '. The appellants are two brothers Ramji and Basist. It was alleged that these two assaulted one Sidhnath (P.W. 2) who as a result suffered grievous injuries Basist, the younger brother was charged before the Assistant Sessions judge, Arrah, with the commission of an offence under section 307, Indian Penal Code, for the reason that the injury he inflicted was a bhala blow under circumstances ""that if by that act death had been caused he would have been guilty of murder", and as the injury actually sustained was grievous he was further charged with causing grievous hurt under section 326, Indian Penal Code. The elder brother who too caused hurt to the victim was charged under section 324, Indian Penal Code. The Assistant Sessions. Judge held the prosecution case as alleged establish against both the accused. It is now necessary to mention that according to the Sessions judge Ramji was 21 years old and Basist 19. Section 6 of the Act enacts : "6. (1) When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circums tances of the case including the nature of the offence and the character of the offender, would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, shall record its reasons for doing so. (2) For the purpose of satisfying itself Whether it would not be desirable to deal under section 3 748 or section 4 with an offender referred to in subsection (1), the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. " The terms of this section excluded the application of its provisions to Basist who was found guilty of an offence punishable with imprisonment for life (both sections 307 and 326, Indian Penal Code). He accordingly sentenced Basist to undergo rigorous imprisonment for six years under section 307, Indian Penal Code, and to four 'years under section 326, Indian Penal Code, the sentences to run concurrently. As regards Ramji, the elder brother, he considered it inappropriate to afford him the benefit of this provision and recorded his finding on this matter in these terms: "So far as accused Ramji is concerned I am not inclined to take recourse to the provisions of the , because the act of assault on the informant on the part of this accused is premeditated." He sentenced him to undergo rigorous imprisonment for two years under section 324, Indian Penal Code. Both the accused filed an appeal to the High Court. The learned Single judge who heard the appeal considered the evidence in the case and the circumstances in which the injury was inflicted and held that there was no intention on the part of Basist to cause grievous hurt to P.W. 2, with the result that as against him the ' conviction under section 307 as well as that under section 326, Indian Penal Code, were set aside and in their place he recorded a finding of guilty in respect of an offence under section 324, Indian Penal Code, for which he imposed a sentence of rigorous imprisonment for two years. As against Ramji the conviction was maintained but being informed by 749 counsel that that accused had been suffering from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months. It was urged before the High Court that the reasons assigned by the Assistant Sessions judge for refusing to apply the provisions of section 6 of the Act to accused Ramji were not proper. This submission was, however, repelled since the learned judges considered the section inapplicable to that accused because, though he might have been "under 21 Years of age" on the date of the offence (October 17, 1960), "he was not a person under 21 years of age" on May 24, 1961, when the Sessions judge found him guilty and sentenced him to a term of imprisonment, holding that the crucial date on which the age had to be determined being not the date of the offence but the date on which as a result of a finding of guilty sentence had to be passed against the accused. As regards Basist also, it was urged before the High Court that in view of the alteration in the finding recorded as regards his guilt, the beneficial provisions of section 6 of the Act became applicable to him, the learned judge holding that he could pass the same order as the trial court could have done because of the provisions contained in section 11 of the Act reading : "11. (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision. (2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the 750 Court to which appeals ordinarily lie from the sentences of the former Court. (3) In any case where any person under. twenty. one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any othe r law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the Probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit. (4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in ' lieu thereof pass sentence on such offender according to law Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was found guilty. " The learned judge however, declined to do so observing: "No doubt, under the provisions of section 11 of the this Court is competent to make an order, but it is entirely discretionary for this Court to exercise the power conferred on it under section II. In, view of the fact that the Court below has already dealt with 751 this matter, though not very satisfactorily, I do not consider it desirable to deal with the cases of these appellants under the provisions of the at this stage." and instead, passed the sentence of imprisonment as already mentioned. It is the correctness of these orders refusing to apply the provisions of section 6 of the Act to the cases of the appellants that is raised for consideration in this appeal. Taking first the case of Ramji , the elder brother, we entirely agree with the High Court in their construction of section 6. The question of the age of the person is relevant not for the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found, on the evidence, guilty. The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. If this were borne in mind it would be clear that the age referred to by the opening words of section 6(1) should be that when the court is dealing with the offender that being the point of time when the court has to choose between the two alternatives which the Act in supersession of the normal penal law vests in it, viz., sentence the offender to imprisonment or to apply to him the provisions of section 6(1) of the Act. As the High Court has found that Ramji was not a person under the age of 21 on May 24, 1961, when. the learned Sessions judge found him guilty it is clear that section 6(1) of the Act has no application to him. The position in regard to the second appellant Basist tands on an entirely different footing. He was said to be of the age of 19 by the Sessions judge 752 which is apparently a reference to the time when the offence was committed. If so, he would have been about 20 at the time when the Sessions judge found him guilty of offences under sections 307 and 326, Indian Penal Code, and possibly also below 21 at the time when the High Court altered his conviction into one under section 324, Indian Penal Code. If by reason of his age, and the offence of which he was been found guilty the provisions of section 6(1) are not excluded, the question that has next to be considered is whether the learned judge had an absolute and unfettered discretion to pass or refuse an order under 'the Act by virtue of the terms of section 11 of the Act. This would obviously turn on (1) whether or not section 6(1) was applicable to the High Court, and (2) the proper construction. of the terms of section 11 which empowers appellate and revisional courts to pass orders under the Act. It was urged by learned Counsel for the appellant that the High Court when it recorded a finding that Basist was guilty of an offence under section 324, Indian Penal Code, was squarely within the words "the court by which a person is found guilty" occurring in section 6(1) as it was only by that Court that for the first time the accused was found guilty of an offence which was not excluded by the opening words of that section. Learned Counsel relied for this position on the judgment of High Court of Madras in Narayananwami Naidu vs Emperor (1) following a ,decision of the Allahabad High Court to a similar effect in Emperor vs Birch (2). The question that arose in the first of the above cases related to the scope of the words "Court before whom he is con victed" occurring in section 562, Code of Criminal Procedure, as it originally stood. The provision in section 562, Code of Criminal Procedure, is somewhat in pari materia with section 4 of the Act wherein a Person found guilty of having committed offences not punishable (1) Mad. (2) All. 306. 753 with death or imprisonment for life may, instead of being sentenced to imprisonment, be released on entering into a bond. In the Code as originally enacted which the decision referred to had to deal with, there was no express provision as regards the power of appellate courts to pass similar orders. The accused in that case was tried and convicted by a magistrate under sg. 447 and 352, Indian Penal Code, and sentenced to undergo rigorous imprisonment for two weeks. The accused filed an appeal and the Deputy Magistrate who heard it while affirming the conviction directed his release on his executing a bond applying to him the provisions contained in section 562, Code of Criminal Procedure. The District judge considered that the Deputy Magistrate had exceeded his jurisdiction in making this order and referred the question to the High Court. The learned judges rejected the reference observing that the words ""Court before whom he is convicted ' used in s.562 were not intended to limit the power of making orders under that section to the court of first instance. It might be mentioned that the Code has since been amended by the addition of sub section (2) which runs : "An order under this section may be made by an appellate court or by the High Court when exercising its powers of revision." so that it is no longer necessary for an appellate or revisional court to rely on any construction of the words ", 'the court by which the person is found guilty" for invoking or exercising its jurisdiction. The position therefore comes to this the words referring to ""the court by which a per son is found guilty" are wide enough to include an appellate court, and particularly so where it is the appellate court alone which by reason of its finding on the guilt of the accused becomes for the first time vested with the power or the duty to act under the section. 754 Undoubtedly if section II were attracted to the case, then there would be no need for invoking the Jurisdiction of the High Court under section 6, and indeed in those circumstances the proper construction of section 6 itself would be to exclude an appellate or revisional court since a redundancy could not have been intended by the statute. The first question would therefore be to ascertain whether the jurisdiction or powers envisaged by section 6(1) are within ' the scope of the jurisdiction conferred by section 11. The power conferred on the High Court is to pass ""an order under the Act. " One is thrown back on the Act for determining what these are. They are: (1)Under section 3 a court might order the release of a person found guilty of an offence of the type specified in the section after due admonition. (2)Under section 4 an order may be passed in circumstances set out in it releasing such person on entering into a bond with or without sureties or pass a supervision order. (3)Orders which are consequential on orders under section 3 or section 4 like those for which provision is made by sections 5 & 9. So far as section 6 is concerned it is, to say the least, doubtful whether it. involves the " 'passing of an order", for the operative words are that the court finding a person guilty refrains from passing any sentence. An injunction enacted by this Act against passing a sentence of imprisonment which the court under the normal law is empowered or enjoined to pass can hardly be termed ",passing an order" under the Act. If this were correct, the result would be that on the reasoning which the High Courts of Madras and Allahabad adopted to construe the words in section 562, of the Code, the High Court, when hearing an appeal, would be subject to the provisions of section 6. 755 It is however possible that the words in section 11 (1) "" ',pass an order under the Act" are not to be construed so strictly and literally, but to be understood to mean "to exercise the powers or Jurisdiction conferred by the Act. " This wider interpretation might perhaps be justified by the scope and object of this section. Section 11 is to apply ""notwithstanding anything in the Code or any other law" to all courts empowered to sentence offenders to imprisonment. TO read a beneficial provision of this universal type in a restricted sense, so as to confine the power of these courts to the exercise of the powers under sections 3 and 4 alone would not, in our opinion, be in accord with sound principles of statutory interpretation. We are therefore inclined to hold that the Courts mentioned in section 11 be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under sections 3 and 4 and the consequential provisions but also under section 6. Accepting therefore the interpretation of section 11 (1) which was urged by Counsel for the respondent, that the courts mentioned in it could pass orders under sections 3, 4 or 6, the question next to be considered relates to the incidents of that jurisdiction with regard to the amount and nature of discretion vested in these courts. It was submitted on behalf of the appellant that the power conferred on the High Court and other courts by section 11 (1) was neither more nor less than those of the court under section 6 (1) and that the former were bound to exercise it, subject to the same conditions and limitations as are set out in the latter provision. Stated in other words the interpretation suggested was that the terms of s.6 had, so to speak, to be read into the jurisdiction of the courts acting under section II (1). On the other hand the contention urged by the respondent was that section II (1) had to be read on its own language and so read it conferred on 756 the courts mentioned in it, an absolute and unfettered discretion "to pass or not to pass an order under the Act" as they thought fit having regard to the circumstances of each case. A considerable portion of the argument by the respondent was based on the import of the facultative verb "may" in the words " 'may be made" occurring in the operative part of the sub section as conferring a discretion and that as no limitations were placed ' by this or any other section on the exercise of this discretion, the same should be held to be unfettered and therefore capable of being exercised, no doubt, on judicial principles but not subject to any statutory limitations. It might be mentioned that from the relevant passage of the judgment of the High Court which we have extracted, it would appear that the learned judge has proceeded on this interpretation of section 11. Though the word "may" might connote merely an enabling or permissive power in the sense of the usual phrase ""it shall be lawful", it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes "Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may ' or 'shall ' if they think fit, or '&hall have power, ' or that, 'it shall be lawful ' for them to do such acts, a statute appears to use the language of mere permission but it has been so often decided as to have become an axiom that in such cases such expressions 757 may have to, say the least a compulsory force. The fact that the power is conferred on a Court might militate against the literal interpretation of "may" suggested by the respondent. This apart, the power conferred by section 11(1) is to pass " 'an order under the Act" and the question arises as to the precise import of these words, and in particular whether these words would not imply that the order to be passed would be subject to the same limitations or conditions as the orders under what might be termed the primary provisions of the Act. Thus section 3 empowers a court to release certain offenders on probation of good conduct after due admonition, and it lays down certain tests as a guidance or the bases upon which that discretion is to be exercised : (1) that no previous conviction should have been proved against him, and (2) that the court by which the person is found guilty should be of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do. Similarly, section 4 empowers a court to release certain offenders on probation of good conduct, The criteria laid down there. and the guidance set out is that the court by which the person is found guilty should be of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him, on probation of good conduct, with a proviso that the power is not to be exercised unless the court were satisfied that the offender or his surety has :a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. Would it be a proper construction of section 11 (1) to hold that the High Court etc. could pass orders in appeal or revision without reference to these standards, 758 tests or guidance which the statute has prescribed for the primary courts? We are clearly of the opinion that this is capable only of a negative answer and that the power conferred on appellate or other courts by section II (1) was of the same nature and characteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 & 4. We are confirmed in this view by the terms of section 11(3). If this were so it would not be possible to adopt a, different rule of interpretation when one came to consider the power under section 6. It cannot, for instance, be suggested that the High Court could in its discretion exercise the power under section 6 in the case of a person who is above the age of 21, nor where a person is found guilty of an offence punishable with death or imprisonment for life. These limitations on the exercise of the discretion have surely to be gathered only from the terms of section 6(1). If section 6(1) applies so far to restrict the absolute and unfettered discretion implied by the word "may", it appears to us that logically the conclusion is inescapable that the entirety of section 6(1) applies to guide or condition the jurisdiction of the High Court under section 11(1). We there. fore reject the submission made to us on behalf of the respondent that an appellate court has an unfettered discretion in dealing with a case which comes before it under section 11 and that its discretion and powers are not to be governed by the terms of section 6(1). The question next to be considered is the result of applying the terms of section 6(1) to a person in the position of Basist. It was not disputed by learned counsel for the respondent that the learned Judge of the High Court failed to consider the case of this accused with reference to the terms of section 6 since he has proceeded on the basis that he had an unfettered discretion in the matter and which in the circumstances of the present case he was not inclined to exercise in favour of the accused. The order of the High Court in so far as it relates to the second appellant 759 Basist must therefore be set aside and the High Court directed to exercise its discretion on the basis that it was judging the matter with reference to the criteria laid down in section 6. We shall now proceed to consider one question which was mooted before us in regard to the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge, when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court. Is the age of the offender to be reckoned as at the date of the judgment of the trial judge or is it the date when the accused is, for the first time, in a position to claim the benefit of section 6. We consider that on the terms of the section, on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed, the crucial date must be that upon which the trial court had to deal with the offender. In this view as Basist was admittedly below 21 years of age at the time of the judgment of the Assistant Sessions judge, section 6 was not inapplicable to him even assuming he was above that age by the date of the order in appeal. The appeal is accordingly allowed in part i.e., in regard to the second appellant Basist and is remanded to the High Court to consider the proper order to be passed in his case by applying the provisions of section 6 of the probation of offenders Act, 1958. Appeal allowed in part.

The appellants, R and B, who were brothers, were pro. secuted for having assaulted S who as a result suffered grievous injuries. Both the appellants were found guilty by the Assistant Sessions judge, and sentenced to various terms of imprisonment. While B was convicted under sections 307 and 326 of the Indian Penal Code, the conviction of R was under section 324. Section 6 (1) of the , enacts "When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment. . . Though B was 19 years old, section 6 (1 was inapplicable to him as he was found guilty of an offence punishable with imprisonment for life. R, the older brother was aged 2 1, but the trial judge considered it inappropriate to afford him the benefit of the section on the ground that the. act of assault Was premeditated. On appeal, the High Court set aside the convictions of B and in their place a finding of guilty under section 324 of the Indian Penal Code was recorded for which a sentence of 2 years was imposed, and, as regards R, his conviction under section 324 was maintained but the sentence was reduced from 2 years to 9 months. On the question of the applicability of the provisions of the Act to the accused, the High Court took the view (1) that section 6 (1) was inapplicable to R because though lie might have been under 21 years of age an the date of the offence he was not a person under 21 years when the Sessions judge found him guilty, and (2) that though under section 1 1 of the Act, the High Court was competent to make an order in favour of B, it was entirely discretionary for that Court to exercise the power conferred on it under that section, and that in view of the fact that the court below had already dealt with the matter, it wag not desirable to deal with the case of the appellant under the provisions of the Act at that stage. 746 Held : (1) that the age referred to in section 6 (1) of the , is that when the courts deal; with the offender, that being the point of time when the court has to choose between the two alternatives, whether to sentence the offender to imprisonment or to apply to him the provisions of section 6(1) of the Act. (2)that the courts mentioned in section 11 of the Act, be they trial courts or courts exercising appellate or revisional jurisdiction, are empowered to exercise the jurisdiction conferred on courts not only under sections 3 and 4 and the con. sequential provisions but also under section 6. (3)that the power conferred on appellate or other courts by section 1 1 (1) of the Act is of the same nature and chara cteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 and 4. (4)that the provisions of section 6. (1) restrict the absolute and unfettered discretion implied by the word ,may" in section 11 (1), and the entirety of section 6 (1) applies to guide or con dition the jurisdiction of the High Court under section 11(1). (5)that the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court, is that upon which the trial court had to deal with the offender.

ivil Appeal No. 2792 of 1988 Etc. From the Judgment and Order dated 27.7.1988 of the Bombay High Court in W.P. No. 3264 of 1988. G. Ramaswamy, Additional Solicitor General, T.R. Andya rujuna, V.V. Vaze, V.M. Tarkude, D.N. Misra, M.D. Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M. Khanwil kar, A.S. Bhasme, Dalveer Bhandari, Vijay Thorat, Raian Karanjawala, Mrs. Manik Karanjawala, Ms. Meenakshi Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K. Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar for the appearing parties. The Judgment of the Court was delivered by DUTT, J. The principal point involved in these appeals relates to the constitutional validity of rule 4(A) of the Rules flamed by the Bombay Municipal Corporation for admis sion to post graduate degree and diploma courses in its medical colleges framed on June 18, 1988 and rule 5 framed under the Government Resolution dated June 18, 1971 for admission to the Government Medical College, both the rules providing for collegewise institutional preference for admission in the M.D. Course. By the impugned judgment, the High Court allowed the writ petitions out of which these appeals arise, and struck down the impugned rule 4(A) in whole and rule 5 (wrongly stated as rule 6 in the High Court judgment), in so far as it applies to the Government Medical College in the city of Bombay, as discriminatory and viola tive of Article 14 of the Constitution and, accordingly, invalid. Rule 4(A) is as follows: "4. PREFERENCE: (A) While selecting candidates for admission to the postgraduate courses preference will be given in the following order: 922 (a) Candidates applying for admission at the parent institution. (Note: Parent institution means the medical college at which the candidate has passed his qualifying examination). (b) Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai. " Relevant portion of rule 5 framed under the Government Resolution dated June 18, 1971 reads as follows: " 5. . . . . . . . . . . While selecting from amongst eligi ble candidates preference will be given to the students of that college i.e. who passed their final M.B.B.S. Examination from that college in Broad specialities and their ancillary discipline. " There are four medical colleges in the city of Bombay, and affiliated to the University of Bombay. Of these four medical colleges, three are run and conducted by the Bombay Municipal Corporation, namely, Lokmanya Tilak Memorial Medical College (LTMMC), Seth G.S. Medical College (GSMC) and Topiwalla National Medical College (TNMC). The only college that is being run by the Maharashtra Government in the city of Bombay is Grant Medical College (GMC). It is not necessary to state in details the facts leading to the filing of the writ petitions before the High Court out of which these appeals arise. Suffice it to say that some candidates who were not admitted in the M.D. Course in the respective colleges from which they had passed their MBBS Examination, were not also admitted in the other medical colleges in the city of Bombay, in view of collegewise institutional preference as provided by rule 4(A) in respect of three Municipal Colleges and by rule 5 relating to GMC, the Maharashtra Government College. The High Court, as stated already, struck down rule 4(A) and rule 5 in part and allowed the writ petitions. Hence these appeals by special leave. It is Urged by Mr. G. Ramaswamy, the learned Additional Solicitor General, that this Court in Dr. Pradeep Jain vs Union of India & Ors., ; has given sufficient indication of its approval 923 of collegewise institutional preference. While the learned Additional Solicitor General frankly concedes that he is not in a position to support cent percent institutional prefer ence or reservation of seats for admission in the M.D. Course in the Municipal Colleges and the Government College in the city of Bombay, such preference or reservation in respect of certain percentage of seats is quite permissible and will not be hit by the provision of Article 14 of the Constitution. In Pradeep Jain 's case, the question that has been considered by this Court as noted by Bhagwati, J. (as he then was) is whether, consistently with the constitutional values, admissions to a medical college or any other insti tution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit. The question that has been formulated and consid ered does not show, on the face of it, that collegewise institutional preference was also involved as a part of the question. It has been ruled in Pradeep Jain 's case that effort must always be to select the best and most meritori ous students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and that it would be against na tional interest to admit in medical colleges or other insti tutions giving instruction in specialities, less meritorious students when more meritorious students are available. So, wholesale reservation on the basis of domicile or residen tial requirement within the State or on the basis of insti tutional preference for students who have passed the quali fying examination held by the University or the State ex cluding all students not satisfying this requirement, re gardless of merit, has been condemned. The Court took the view that reservation of seats based on residential require ment within the State or on institutional preference should, in no event, exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made, the 70 per cent reserva tions needs to be reduced if the Indian Medical Council determines a shorter outer limit. The institutional preference that has been referred to in the observation of Bhagwati, J. does not at all relate to collegewise institutional preference, with which we are concerned. The learned Additional Solicitor General has, however, placed strong reliance on the following observation made by Bhagwati, J. in Pradeep Jain 's case which is ex tracted below: 924 "We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence re quirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B .S. course from a medical college or university may be given preference for admission to the post graduate course in the same medical colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course. But, even in regard to admis sions to the post graduate course, we would direct that so far as super specialities such as neuro surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis. " It is urged by the learned Additional Solicitor General that in Pradeep Jain 's case collegewise institutional pref erence has been recognised and upheld, as is apparent from ,the above observation, particularly from the observation "a certain percentage of seats may, in the present circum stances, be reserved on the basis of institutional prefer ence in the sense that a student who has passed MBBS Course from a medical college or University may be given preference for admission to the post graduate course in the same medi cal colleges or university, but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats avail able for admission to the post graduate course. " It is true the expression "institutional preference" has been used in the said observation in respect of a medical college or a university, but we do not think that in making that observa tion Bhagwati, J. had in his mind 925 collegewise institutional preference. Any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made. As has been pointed out, the question that has been considered in Pradeep Jain 's case relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of merit. It was not the case of anybody that reservation of seats. should be made on the ground of collegewise institutional preference. The institutional preference that was considered in the case was university wise institutional preference and not collegewise institu tional preference. It is also apparent from the judgment of Amarendra Nath Sen, J., who delivered a separate but concur ring judgment, that the Court had no occasion to consider the question of collegewise institutional preference in matters of admission to M.D. Course. In the circumstances, we are unable to accept the contention of the learned Addi tional Solicitor General that this Court in Pradeep 's Jain 's case has upheld or recognised collegewise institutional preference of seats in medical colleges for admission in M.D. Course. The position is clarified in a subsequent decision of this Court in Nidamarti Mahesh Kumar vs State of Maharashtra and others; , which related to the constitu tional validity of regionwise reservation of seats in medi cal colleges. It has been observed by Bhagwati, C.J. that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it will be consti tutionally permissible, without violating the mandate of the equality clause to provide a high percentage of reservation or preference for students coming from that region because without reservation or preference students from such back ward region will hardly be able to compete with those from advanced regions, since they would not have adequate oppor tunity for development so as to be in a position to compete with others. Further, it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality. In respect of such reservation of preference the reasons that have been given are that it would cause considerable hardship and incon 926 venience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reserva tion or preference regionwise. There may be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of real opportu nity for pursuing the medical course even though on paper they would have got admission in the medical college. Fur ther, it has been pointed out that some difficulty would arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical educa tion in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hotels. Even with regard to regionwise reservation of certain percentage of seats in medical colleges, except for the reasons mentioned above, this Court in Nidamarti 's case has turned down the contention that the provision of the im pugned rule, that is, students from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to medical college or colleges situate in the jurisdiction of another university, but would be confined only to medical college or ,colleges within the jurisdiction of the same university, was intended to give protection to students in certain rural areaS, the population of which is socially, economically and education ally backward, for otherwise they would have not been able to compete with students from advanced regions and, conse quently, the classification made by the provision was con stitutionally permissible. Thus, except in certain circum stances, even regionwise reservation of seats in medical colleges has not been approved by this Court. In Pradeep Jain 's case, merely because the expression "institutional preference" has been used with reference to a student pass ing the MBBS Course from a medical college or a university, it does not necessarily follow that the Court had in its contemplation or was laying down collegewise institutional preference. In support of the contention that collegewise institu tional preference or reservation of seats was in the contem plation of this Court, reliance has been placed on behalf of the appellants on an earlier 927 decision of this court in Jagdish Saran & Ors. vs Union of India & Ors. , ; In that case, of the three learned Judges, Krishna Iyer, J. delivered the judgment for himself and for Chinnappa Reddy, J. Pathak, J. (as he then was) agreed with the judgment of Krishna Iyer, J. that the writ petition should be dismissed, but he gave his own reasons. The reasons of Pathak, J. are, inter alia, con tained in the following observations: "It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures. But much more than convenience is involved. There are all the advantages of a continuing frame of educational experience in the same educational institution. It must be remembered that it is not an entirely differ ent course of studies which is contemplated; it is a specialised and deeper experience in what has gone before. The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions accordingly. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also. Over the under graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes. The preference is based on a reasonable clas sification and bears a just relationship to the object of the education provided in the post graduate classes. The concept of equality codified in our constitutional system is not violated. It has been said sometimes that classification contradicts equality. To my mind, classification is a feature of the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone from a class between them selves, and the classification is not 928 vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality. " The above observations or reasons should not be read or understood dehors the facts and the questions involved for the determination of this Court. The facts of that case will be stated presently. The University of Delhi has many post graduate and diploma courses in the faculty of medicine providing in all 250 seats. The three medical colleges in Delhi turn out annually 400 medical graduates who get house jobs in the local hospitals and qualify themselves for postgraduate course. As the graduates from the Delhi Univer sity could not be accommodated fully or even in part for the post graduate course in Medicine and as these graduates were not considered for admission into other universities, Delhi University had earmarked some seats at the post graduate level in Medicine for the medical graduates of Delhi Univer sity. By the impugened rule, 70 per cent of the seats at the post graduate level was reserved for Delhi graduates and 30 per cent of the seats was kept open to all including gradu ates of Delhi. It was, therefore, not a case of collegewise reservation, but 70 per cent reservation of seats in the medical colleges under the Delhi University for the medical graduates of that University. The question of collegewise institutional preference or reservation of seats did not at all arise, nor was it argued or sought to be decided in Jagdish Saran 's case. It is true that the observation of Pathak, J., without reference to the context of the facts and the question involved in that case, may support to some extent the contention of the appellants, but the contention has to be rejected on a reference to the facts and the question involved in that case. It is, however, submitted by the learned Additional Solicitor General that there are some special facts and circumstances which justify collegewise reservation as provided by the impugned rules 4(A) and 5. It is stated by him that while the theoretical examinations in MBBS Course are conducted by the University, the practical examinations involving 50 per cent of the total marks are held by the individual colleges. Counsel submits that in such circum stances the merits of the candidates passing the MBBS Exami nation from these four colleges are difficult to be compared and evaluated for the purpose of admission in the M.D. Course. This submission has also been made by Mr. Baze, learned Counsel appearing on behalf of the University of Bombay. 929 We regret, we are unable to accept such a contention. It is not disputed that in each college the practical examina tions are conducted by a set of four examiners consisting of one internal examiner from the same college, one external examiner from one of the other three colleges and two exter nal examiners from outside Bombay. Thus, excepting one internal examiner, three other examiners are external exam iners and all those examiners are presumably appointed by the University. These examiners are of high academic quali fications and we fail to understand why they would deviate from the standard prescribed by the University for the assessment and evaluation of the merits of the students in the practical examinations. There is, therefore, no sub stance in the contention that the standard of examination and evaluation of the merits of students in such practical examinations differ from college to college. Indeed, no material has been placed before us in support of the conten tion that different standards are adopted by the colleges in MBBS practical examinations. Equally untenable is the con tention that because of institutional preference, the dif ferent marks given by different colleges do not affect the students, as it is the relative merit of the student in the same college which matters in the selection of post graduate students. We do not find any justification for the apprehen sion that if the institutional preference is removed and all the candidates from the University are pooled together, a process of dilution and undesirable racing are likely to start making a mockery of the examination system and creat ing mad race of overtaking the other colleges. This appre hension has been expressed by the Dean of Lokmanya Tilak Memorial Medical College in his. affidavit filed before the High Court. Another ground in justification of collegewise institu tional preference which has been relied on by the Dean in his affidavit and urged before us on behalf of the appel lants is that the facilities differ from college to college in respect of the pattern of patients coming to the hospital attached to each college. By way of illustration, it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma cases (accidents and injuries), the number of such cases is much higher than that in the hospital attached to the three other colleges. The under graduate students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these cases and will be far more suitable for seat in the post graduate course in Surgery where he will have to actu ally deal with these cases than a student of any other college. Even assuming that the facts stated above are correct, we do not think that the same constitute any ground in support of institutional preference. It is the university which is required to maintain a standard in respect of the 930 subjects in the colleges affiliated to it. It is not the case of the University that the standard prescribed by it is not maintained in different colleges or that any particular college is higher in standard in a particular subject than that in another college. It may be that the number of acce dent and injury cases in the hospital attached to Lokmanya Tilak Memorial Medical College is higher than the number of such cases in the hospitals attached to other colleges, but that does not prove or lead to the conclusion that the students of other colleges will be deficient in surgery or less meritorious than the students of Lokmanya Tilak Memori al Medical College. The contention in this regard is without substance and is rejected. Let us now examine the question of collegewise institu tional preference from the point of view of Article 14 of the Constitution. By the impugned rules, a classification has been sought to be made with the students of each partic ular college passing their MBBS Examination from that col lege to the exclusion of all other students obtaining their MBBS Degree from the other colleges. In order that a classi fication is a permissible one within the meaning of Article 14 of the Constitution, two tests are to be satisfied, namely, (1) that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group; and (2) that there is a rational nexus to the object sought to be achieved by the impugned rules. The object sought to be achieved by the impugned rules is obviously to prefer merit for the post graduate course and to exclude less meritorious candidates. It will be presently demonstrated that both the tests are not satis fied in the instant case. In this connection, we give below following tabular statement showing the number of seats available in each of the said four colleges in some of the disciplines. COLLEGE LTMMC TNMC GSMC GMS Students Intake 100 100 100 DISCIPLINE 1. M.D. Obs. & Gyn. 2 1 5 3+ I(R) 2. M.S. Orthopaedics 2 1 2 1 3. M.S. General Surgery 4 2 3 3+ I(R) 4. M.D. General Medicine 4 3 3 3+ I(R) 931 In Seth G.S. Medical College (GSMC), there are five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl Medical College (TNMC). In view of the impugned rules providing collegewise institutional preference, five seats in Obstetrics and Gynaecology in Seth G.S. Medical College were allotted to five of its students. Of these five students, Dr. Ganpat Sawant secured 150 marks and the four other candidates secured marks between 118 and 128 in the MBBS Examination. The respondents Dr. Anjali Deokumar Thuk ral and Dr. Sumeet Godambe, both students of Topiwala Na tional Medical College obtained respectively 140 and 143 marks in the MBBS examination. They, however, were not admitted in their college, for there was only one seat in Obstetrics and Gynaecology and that seat was alotted to a student of that college who secured 156 marks in the MBBS examination. Thus, although Dr. Anjali Deokumar Thukral and Dr. Sumeet Godambe secured more marks than the students admitted in the post graduate course in Obstetrics and Gynaecolocy in the said G.S. Medical College, except the said Dr. Ganpat Sawant, they were refused admission in view of collegewise institutional preference. Similarly, in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post graduate degree course by virtue of the impugned rules. Thus, there is a patent discrimina tion inasmuch as students obtaining lesser marks have been preferred to those obtaining higher marks. There is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such clas sification. By such classification or collegewise institu tional preference, merit has been sacrificed, far less it has been preferred. When the university is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational insti tutions. In such circumstances, collegewise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all. State of Rajasthan and another vs Dr. Ashok Kumar Gupta and others; , is a case of college based institutional preference in respect of five medical colleges in Rajasthan under the same University. The impugned Ordi nance of the University provided for addition of 5 per cent of the aggregate of marks which work out to be 932 to 137.5 marks by way of institutional preference in the sense of preference dependant on the particular medical college at which the concerned candidate has passed his final MBBS Examination. This collegewise institutional preference has been disapproved by this Court in that case and the impugned Ordinance has been struck down. The learned Additional Solicitor General sought to distinguish Dr. Ashok Kumar Gupta 's case from the instant case. We do not think that the said case is distinguishable from the case with which we are concerned, inasmuch as in both the cases the question of collegewise or college based institutional preference is involved. It is stated that mode or method adopted for giving collegewise institutional preference in Dr. Ashok Kumar Gupta 's case is different from the instant case but, in our opinion, nothing turns out of that. So far as educational institutions are concerned, unless there are strong reasons for exclusion of meritorious candidates, any preference other than in order of merit, will not stand the test of Article 14 of the Constitution. So, the impugned rules are discriminatory and do not satisfy the tests of reasonable classification and, as much, cannot be sustained. It is next contended on behalf of the appellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it, seats for the postgraduate course should be reserved in these three colleges for the students passing the MBBS Examination from any of these colleges. If such reservation is allowed, the students of the Maharashtra Government College, namely, the Grant Medical College, will not get any admission in any of the three Municipal Colleges, even if the students or some of them passing the MBBS Course from the Government College are more meritorious than the students for whom the seats will be kept reserved in the Municipal Colleges. It is urged that it will not be a case of collegewise institution al preference so far as the Municipal Colleges are concerned and there should be no objection for the Bombay Municipal Corporation to give preference to the students of the Munic ipal Colleges, of course, to the exclusion of the students of the Government College. This contention, in our opinion, is without any substance. It may be that the Bombay Munici pal Corporation has to spend a lot of money for the colleges run by it, but that will be no ground for making a discrimi nation between the students of the Municipal Colleges and those of the Government College affiliated to the same university, for the purpose of admission in the post gradu ate degree course. Such discrimination will not serve any object which can be justified on any rational basis. Such reservation or preference also cannot be allowed, for if allowed, rule 5 of the Rules framed under the 933 Government Resolution dated June 18, 197 1 will survive inasmuch as the students of the Grant Medical College will only be admitted in the M.D. Course. But, those students who could not be admitted in that College, will not be eligible for admission in the Municipal Colleges. We are unable to permit such discrimination in the matter of admission in the M.D. Course. Another ground on which collegewise institutional preference has been sought to be justified by the learned Additional Solicitor General is on the basis of institutional continui ty. In support of this ground of institutional continuity, the learned Additional Solicitor General has placed much reliance on the observations of Pathak, J. in Jagdish Sa ran 's case, which has already been extracted above. It was not a case of collegewise institutional preference or insti tutional continuity, and the said observations should not be understood in that sense, but in the sense of institutional continuity in the same university. After giving our thoughtful consideration to the question of collegewise institutional preference, we are of the view that such preference or reservation of seats is not permissible and the High Court has rightly struck down both the impugned rule 4(A) flamed by the Bombay Municipal Corpo ration and part of rule 5 flamed under the Government Reso lution, that is to say, only in respect of its application to the Grant Medical College in the city of Bombay relating to admission to post graduate M.D. Course. We, however, make it clear that the students who have been admitted to post graduate M.D. Course pursuant to the impugned rules, their admission shall not be interfered with or disturbed. At this state, we may consider the submission of Mr. Lalit, learned Counsel appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for their impleadment as party respondents to Civil Appeal No. 2792 of 1988. We do not think that any useful purpose will be served by implead ing them as party respondents to the appeal. The only prayer that has been made by Mr. Lalit is that the applicants who have passed the diploma course from the Municipal Colleges should be held to be eligible for admission in the M.D. Course with credit for the diploma course in any of the Municipal Colleges. We are told by the learned Counsel appearing for the State Government and the Bombay Municipal Corporation that if the impugned rules are struck down, they will have to frame fresh rules consistent with the judgment of this Court and, as we have directed not 934 to disturb admission of the candidates in the post graduate M.D. Course pursuant to the impugned rules, we consider the prayer made by the applicants as quite reasonable and, accordingly, direct that the applicants who have passed the diploma course in the Municipal Colleges after passing the MBBS Examination, will be eligible for admission in the post graduate M.D. Course in any one of the Municipal Col leges with credit for the diploma course. Mr. Tarkunde, learned Counsel appearing on behalf of the respondents writ petitioners, submits that the cases of admission of some of the respondents, who have not been admitted to the postgraduate degree course in certain spe cialities of their choice in view of the impugned rules, may be considered by the State of Maharashtra and the Municipal Corporation of Greater Bombay, in case seats are available, either in the Municipal Colleges or in the Grant Medical College, which is a Government College. In our opinion, the prayer is quite reasonable and the State of Maharashtra and the Bombay Municipal Corporation are directed to consider the question of their admission, provided seats are avail able. The names of the said respondents and the respective disciplines of their choice are given below: 1. Dr. Anjali Deokumar Thukral M.D. Gynaecology and Obstetrics 2. Dr. Atul Jaywant Galtonde M.S. Orthopaedics 3. Dr. Naresh Kanayalal Navani M.S. General Surgery 4. Dr. Anna Koshy Joseph M.D. General Medicine 5. Dr. Vaishali Ramnik Doshi M.D. General Medicine Before we part with these cases, we may dispose of one submission made on behalf of the appellants. Our attention has been drawn to the fact that while striking down the impugned rule 4(A) and impugned rule 5 in part, the High Court has directed the appellants to frame rules adopting certain alternative methods for dismission in the post graduate M.D. Course for the next year, as stated in the judgment. The said directions appear to be in the nature of suggestions by the High Court, and the appellants will be free to frame rules for admission in the post graduate M.D. Course in the said four colleges in the city of Bombay in conformity with the provision of Article 14 of the Constitution and in the light of the judgment of this Court and in 935 framing the rules, the appellants may take into considera tion the suggestions of the High Court. In the result, Subject to the directions given above, the appeals are dismissed. There will, however, be no order as to costs. SPECIAL LEAVE PETITION (CML) NO. 8883 OF 1988 WRIT PETITION (CIVIL) NO. 1253 OF 1988 For the reasons aforesaid, Special Leave Petition and Writ Petition fail and are dismissed without any order as to costs. Y.L. Ap peals dismissed.

There are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay. Out of four, three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra. Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt. vide Govt. Resolution dated June 18, 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges. Both the aforesaid Rules provide for collegeate institu tional preference for admission in the M.D. Course. In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes of admission to the Post Graduate M.D. degree, no matter wheth er the candidates had secured less marks than those who secured higher marks, having passed the M.B.B.S. Exam. from other colleges. On this basis some candidates who were not able to secure admission to the M.D. Course in the respec tive colleges from which they had passed their M.B.B.S. Examination were not also admitted in the other medical colleges in the City of Bombay, in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above. Those students/candidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn. and the State Govt. in the High Court, as being violative of article 14 of the Constitution. The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt. Medical College, as discriminatory and violative of article 14 of the Constitution and thus in valid. Hence these appeals by Special Leave. Dismissing the appeals with some directions, the Court, HELD: When the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same University except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In such circumstances, college wise institutional prefer ence cannot be supported and, this Court has not approved of such preference at all. [931F G] So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates, any preference other than in order of merit, will not stand the test of article 14 of the Constitution. [932C D] The Rules are discriminatory and do not satisfy the test of reasonable classification and as such, cannot be sus tained. The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate M.D. Course pursuant to the impugned Rules, their admission shall not be interfered with or disturbed. [933E] The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate M.D. Course for the next year. The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules, the appellants may take into consideration the sug gestions of the High Court. [934G H; 935A] Dr Pradeep Jain vs Union of India & Ors., ; , distinguished. Nidamarti Mahesh Kumar vs State of Maharashtra & Ors. , ; , not applicable. 921 Jagdish Saran & Ors. vs Union of India & Ors. , ; , not applicable. State of Rajasthan & Anr. vs Dr. Ashok Kumar Gupta & Ors., ; , not applicable.

Appeal No. 447 of 1957. Appeal by special leave from the judgment and order dated the 1st August 1956 of the Labour Appellate Tribunal of India, Culcutta in Appeal No. Cal. 107 of 1956. D. N. Mukherjee, for the appellants. Y. Kumar, for the respondent. May 6. The Judgment of the Court was delivered by SINHA J. This appeal by special leave, is directed against the order of the Labour Appellate Tribunal, dated August 1, 1956, dismissing in limine the appeal 15 against the Award of the Third Industrial. Tribunal, dated March 8, 1956. The Great Indian Motor Works Ltd., now in liquidation (hereinafter referred to as 'the Company '), represented by one of the Managing Directors, K. D. Nundy, is the first appellant. The said K. D. Nundy, in his capacity as the creditor of the Company and/or as the auction purchaser of the Company, is the second appellant. One hundred and forty two employees of the Company, represented by the Bus Workers ' Union, are collectively the first respondent. The second and third respondents, C. D. Nundy and D. L. Dutt, are the Official Liquidators of the Company, appointed by the High Court as such. The relevant facts are these: The Company was incorporated and registered under the Indian Companies Act, 1913, in 1926, as a private limited company with its registered office at Calcutta. Its business was mainly that of carrying on public transport on Route No. 14 in the City of Calcutta, as also of dealers in and repairers of motor vehicles. It had an authorized capital of six lacs of rupees divided into 600 shares of Rs. 1,000 each, out of which, shares worth Rs. 4,00,000 only had been subscribed and paid up. The registered ,share holders of the Company, were Kristo Das Nundy, the second appellant, having 246 shares; Chandy Das Nundy, respondent No. 2, having 142 shares, and Kumar Kartick Charan Mullick, holding 12 shares, each of the face value of Rs. 1,000. On account of financial difficulties and disputes between its share holders, an application for compulsory winding up of the Company was made by the said respondent No. 2, on the Original Side in the High Court at Calcutta. On July 23, 1951, an order for winding up the Company was made, and the Official Receiver was appointed the Official Liquidator of the Company. An appeal against the order aforesaid, was dismissed on December 5, 1951, and the order for winding up the Company, stood confirmed. By an order dated December 11, 1951, the Official Receiver was discharged and the respondents 2 and 3 aforesaid, were appointed Joint official liquidators in his place, with 16 power to sell the business of the Company as a going concern. In April, 1953, the list of the creditors of the Company was settled by the Court, and the second appellant aforesaid, was included in the list as a creditor for the largest amount, namely, Rs. 2,35,818. It may be added that the discharged employees of the Company were not included in the list of creditors thus settled by the Court, After several infructuous attempts for selling the property by auction, on May 4, 1954, the Court ordered the sale of the Company 's business free from all encumbrances, out goings and liabilities, to the highest bidder, subject to confirmation by the Court. The second appellant bid for the purchase of the business with the leave of the Court, and he was declared the highest bidder and purchaser of the business for Rs. 1,42,500 at the sale held on June 12. The said sale was confirmed by the Calcutta High Court on July 5, 1954. On July 23, 1954, the Official Liquidators issued a notice terminating the services of all the employees of the Company with effect from July 24, 1954, except one Assistant and one clerk, whose services were retained until the winding up proceedings were completed. On July 24, the Official Liquidators put the appellant No. 2, the auction purchaser, in possession of the business of the Company, which is now being carried on by the second appellant as the sole proprietor. AS a result of the termination of the services of the one hundred and forty two employees of the Company, as aforesaid, an industrial dispute was raised at the instance of the said employees whose list is attached to the order of Reference, dated August 26, 1954, which is in these terms: " Whereas an Industrial dispute exists between (1) Messrs. Great Indian Motor Works Ltd., 33, Rowland Road, Calcutta, represented by their Managing Directors Sri C. D. Nundy and Sri K. D. Nundy, (2) Official Liquidators of the Company, Sri D. L. Dutta and Sri C. D. Nundy, 33, Rowland Road, Calcutta and (3) Sri K. D. Nundy, Auction Purchaser of the Company, 33, Rowland Road, Calcutta, and their 142, employees, given in the enclosed list, represented by 17 the Bus Workers ' Union, 249, Bowbazar Street, Calcutta, regarding the matters specified in the schedule ; And whereas it is expedient that the said dispute should be referred to an Industrial Tribunal constituted under section 7 of the Industrial Disputes Act, 1947 (XIV of 1947); Now, therefore, in exercise of the powers conferred by section 10 of the said Act, the Governor is pleased hereby to refer the said dispute to the Third Industrial Tribunal constituted under Notification No. 592 Dis./D/12L 5/12 dated the 23rd February, 1953 for adjudication. The said Third Industrial Tribunal shall meet at such places and on such dates as it may direct. SCHEDULE 1.Whether the notice dated 23rd July, 1954, of termination of services of 142 employees with effect from 24 7 54 issued by the Joint Official Liquidators,was justified ? 2.Whether the refusal of the auction purchaser to continue the employment of the 142 employees was justified ? 3. What reliefs are the employees entitled to By order of the Governor. " The employees of the Company had moved the High Court for directions to the Liquidators for the payment of their dues from the Company. The Court, by its order dated September 8, 1954, directed the Liquidators to pay within a week the arrears of salary of all the workmen, and also within a week from receiving sale proceeds of the auction sale aforesaid, to pay the workers, in lieu of notice, one week 's wages to weekly paid workmen, two weeks ' wages to fortnightly paid workmen, and one month 's wages to monthly paid workmen. The Directors were to hold the balance of the sale proceeds till further orders of the Court. It will be noticed from the order of reference, quoted above, that besides the Official Liquidators, the second appellant was also impleaded as a party to the Reference, in his capacity as the auction purchaser of the Company. In his written statement before the Third 18 Industrial Tribunal of West Bengal, which was in seizin of the case, the auction purchaser, now the second appellant, after reciting the facts and circumstances leading up to his auction purchase, as aforesaid, contended that as an auction purchaser, he was not in any event liable for any compensation or dues, as claimed by the workmen; that he was not bound to reinstate the old employees of the Company ; that having purchased the business free from any encum brances, he was not liable for the dues of the workmen, as claimed; that be " had unnecessarily been made a party and dragged here before the Tribunal." He added that he admitted that he was one of the Managing Directors of the Company before its liquidation, but with the order for liquidation, he ceased to function as such. After hearing the parties, the Tribunal made its Award dated March 8, 1955. The Tribunal awarded, inter alia, compensation under section 25(F)(b) of the , and directed the Company to pay compensation, within two months from the date the award became enforceable, to such of the workmen as had been found entitled to the same. It may be noted here that the proceedings before the Industrial Tribunal had commenced without the necessary sanction of the High Court in the liquidation proceedings, but during the pendency of the proceedings, the High Court, by its order dated December 20, 1955, granted leave to the workmen to proceed with and continue the proceedings against the Official Liquidators of the Company. The Industrial Tribunal, therefore, further directed that so far as the Liquidators were concerned, the compensation awarded to the workmen " shall be recoverable only out of the assets in their hands according to law". So far as the auction purchaser was concerned, the award proceeded to make further directions in these terms: " The auction purchaser, it has already been noted, purchased the different sections of the business with the name " The Great Indian Motor Works " free from encumbrances and all outgoings and liabilities (Vide Exts. D and E), and the said purchase was 19 confirmed on 5th July, 1954. After the sale was confirmed and before possession was taken by the auction purchaser, the Liquidators terminated the employment of all the employees (save and except the Accountant and one Clerk) by a notice dated 23rd July, 1954, with effect from 24th July, 1954. After such termination of employment, the auction purchaser obtained possession on 24th July, 1954. At that time no relationship of employer and employees subsisted. In the circumstances the dispute with the auctionpurchaser cannot be considered to be 'industrial dis pute ' as no relationship of employer and employee existed 'between the auction purchaser and the old staff who had been discharged earlier. Hence I agree with the learned Advocate of the auction purchaser that the reference so far as. the auction purchaser is concerned is incompetent. Apart from that, when the auction purchaser purchased the business free from encumbrances and all outgoings and liabilities and when there is nothing to show that the auction purchaser undertook at any time to maintain the old staff in his service, it cannot be said that his refusal to continue the employment of 142 employees was unjustified. Only when one purchases with all assets and liabilities as a going concern, he is bound to continue the old employees in service and not otherwise. I award accordingly. " Against the said Award which, in terms, was made only against the Liquidators and not against the auction purchaser aforesaid, only one of the two Liquidators, namely, Debendra Lall Dutt, made ail application to the High Court for necessary directions regarding preferring an appeal. The other Liquidator, Chandy Das Nundy, opposed the said application for leave to appeal. The High Court, thereupon, made an order on April 30, 1956, refusing leave to the Liquidators to prefer an appeal from the said Award, It was in those circumstances that the appellants, namely, Messrs. Great Indian Motor Works Ltd., represented by the Managing Director, K.D. Nundy, as the first appellant, and K.D. Nundy, in his capacity as creditor and/or contributory of the said Great Indian Motor 20 Works Ltd. (under liquidation) and/or as auctionpurchaser of the Company, as appellant No. 2, filed an appeal before the Labour Appellate Tribunal of India, on May 3, 1956, impleading the one hundred and forty two employees through the Bus Workers ' Union, as the principal respondents, C.D. Nundy and D. L. Dutt, the Official Liquidators of the Company, as proforma respondents. As a counter blast, the aforesaid workmen of the Company filed their appeal on May 17, 1956, impleading the Company represented by their Managing Directors, C. D. Nundy and K. D. Nundy, as the first respondent, the Official Liquidators of the Company, D.L. Dutt and C.D. Nundy, as respondents second party, K.D. Nundy, the auction purchaser, as respondent third party and the workmen not represented by the Bus Workers? Union, as respondents fourth party. It is not necessary to set out the grounds of appeal in either of the two appeals, in view of our decision on the preliminary question of the maintainability of the appeal in this Court, as will presently appear. The Labour Appellate Tribunal disposed of the two appeals by its order dated August 1, 1956. The appellants ' appeal was dismissed as incompetent in view of the provisions of section 179 of Indian Companies Act, 1913, reenacted as section 457 of the . The dismissal of the appeal on the ground of the appeal not being competent, was based on the order of the Calcutta High Court, dated April 30,1956, aforesaid, refusing leave to the Liquidators to prefer an appeal. It is noteworthy that the appeal before the Appellate Tribunal, was not by the Liquidators but by K.D. Nundy as Managing Director of the Company, as also by him in his capacity as the creditor or contributory or as the auction purchaser of the Company. This aspect of the case has not been dealt with by the Tribunal which held that the appeal was not maintainable as it was not authorised by the High Court. The employees ' appeal also was dismissed as it was not pressed in view of the fact that the appeal by the Company stood dismissed as unauthorized. It was against the aforesaid order of the Appellate 21 Tribunal, dismissing the appeal in limine, that the appellants aforesaid moved this Court and obtained special leave to appeal, and the main ground of attack, naturally, was that the Labour Appellate Tribunal was in error in dismissing the appeal as unauthorised or as not maintainable. It is manifest that we are called upon, in the first instance, to decide whether the Labour Appellate Tribunal had rightly dismissed the appeal in limine on the ground that the Liquidators had failed to obtain the necessary sanction of the Calcutta High Court to prefer an appeal from the Award of the Industrial Tribunal. If that order of the Appellate Tribunal is correct, and if we find that the appellants could not have any locus standi to prefer an appeal of their own as distinct from that on behalf of the Company, no other question would arise for determination in this case. If, on the other hand, we come to the conclusion that order was erroneous, at least in respect of the appellants ' appeal, then the appeal will have to be remanded to be re heard by the Appellate Tribunal. It has been urged on behalf of the appellants that in view of the provisions of section 12, read with section 3, of the Industrial Disputes (Appellate Tribunal) Act (48 of 1950) (which was repealed by Act 36 of 1956), which governed the making of appeals before the Appellate Tribunal, the appeal to that Tribunal was competent, and should have been beard and determined on merits. The provisions of sections 3 and 12, which we have to construe in this case, are in these terms: " 3. The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. " " 12. An appeal under this Act against any award or decision of an industrial tribunal may be presented to the Appellate Tribunal by (i)any party which is aggrieved by the award or decision ; or 22 (ii)the appropriate Government or the Central Government, where it is not the appropriate Government, whether or not such Government is a party to the dispute. " We have first to determine whether there is anything in the Indian , with particular reference to section 179 of the Indian Companies Act, 1913, (reenacted as section 457 of the ), that is inconsistent with the provisions of the Industrial Disputes (Appellate Tribunal) Act, 1950 (which hereinafter will be referred 'to as "the Act"). If there is anything in those provisions of the , inconsistent with the provisions of the Act, the latter shall prevail. Hence, we have to construe the provisions of section 12 which specifically deals with appeals. That section permits an appeal to be presented to the Appellate Tribunal by any party which is aggrieved by the award (omitting the words not necessary for our present purpose). It is the usual statutory provision for an appeal, which otherwise would not lie. It does not say either in express terms or by necessary implication, that those specific provisions of the , are abrogated or modified. It does not do away with the necessity of the requisite sanction of the Court so far as a Liquidator is concerned. Under the provisions of the Indian , the affairs of the company under liquidation, are placed in charge of the Official Liquidator, and under section 457, it is only the Liquidator who is authorized with the sanction of the Court, to institute any suit or other legal proceedings in the name and on behalf of the company. Thus, there is no inconsistency between the aforesaid provisions of the Act and the , which only laid down a condition precedent to the filing of an appeal, if it has to be, by a Liquidator of a company in the process of winding up. It concerns a very special case and has no bearing on the general right of appeal. As, in the instant case, the Court refused the necessary sanction to the Liquidators to prefer the appeal, no appeal could have been filed on behalf of the Company. Hence, in so far as the appeal purported to be on behalf of the Company, through the Managing 23 Director aforesaid, it was wholly incompetent. But the appeal was not only by the Company as such, but also by the said K.D. Nundy as the creditor or contributory or auction purchaser ' of the Company. So far as this part of the appeal is concerned, it is clear that only a party. to the Reference aggrieved by the Award could be a party to the appeal. K.D. Nundy was not a party in his capacity as creditor or as contributory. He was impleaded, as already indicated as a party to the Reference in his capacity as the auction purchaser of the business of the Company. So far as that capacity is concerned, it is clear from the order of the Tribunal, that no award was made against him as such. He could not, therefore, be said to be a party aggrieved by the award, having been exonerated from its terms. The Tribunal put this on three main grounds (1) that the auction purchaser had purchased the business of the Company free from all encumbrances, out goings and liabilities, (2) that the employment of the workmen. had been terminated by the Liquidators before possession of the business was delivered to the auctionpurchaser, and (3) that there was no relationship of employer and employees between the auction purchaser and the workmen whose services were so terminated. The Tribunal, in that view of the matter, declared the Reference to be incompetent in so far as the auction purchaser was concerned. This order, the Tribunal passed at the instance of the auctionpurchaser himself. The auction purchaser, therefore, succeeded in obtaining the order which the Tribunal passed, holding that the Reference, so far as he was concerned, was incompetent. In view of these facts, it must be held that so far as the auction purchaser is concerned, he was not aggrieved by the Award made by the Industrial Tribunal. That being so, the provisions of section 12 of the Act, are not attracted to the appeal purported to have been filed by the auction purchaser. It is a little difficult to appreciate why the auctionpurchaser, having succeeded in obtaining the order, set out above, in his favour, changed his mind and preferred an appeal which, in the events that had happened, was not maintainable. 24 In our opinion, therefore, the Labour Appellate Tribunal was not in error in dismissing the appeal by the Company and by the auction purchaser, as incompetent. It follows, therefore, that we are not concerned with the merits of the appeal. In view of the fact that we have not expressed any opinion on the merits of the controversy raised in the abortive appeal, this dismissal shall be without prejudice to the appellants ' rights, if any. The appeal is, accordingly, dismissed, but the parties here are directed to bear their own costs, in view of the fact that we have not gone into the merits of the controversy. Appeal dismissed.

The discharged employees of the Company in liquidation raised an industrial dispute wherein the auction purchaser of the Company was also impleaded as a party. The Tribunal, inter alia, held that no relationship of employer and employee existed between the auction purchaser and the old staff who had been discharged prior to the purchase of the business, and the reference so far as the auction purchaser was concerned was incompetent. The Tribunal directed the liquidators to pay compensation to the discharged employees. The liquidators were refused sanction to appeal from the said award by the High Court whereupon the auction purchaser who was also the managing director of the Company, prior to its liquidation, preferred an appeal in the name of the Company represented by himself as the managing director and also in his capacity as the auction purchaser of the Company. The Appellate Tribunal dismissed the appeal in limine as incompetent in view of the provisions Of section 457 Of the , on the ground that the appeal was not maintainable as it was not authorised by the High Court. Held, that where a party to the Reference in an industrial dispute was exonerated from its terms, and no Award was made against him, he could not be said to be an aggrieved party, thereby attracting the provisions of section 12 of the Industrial Disputes (Appellate Tribunal) Act 1950, and any appeal by him from the said Award will be incompetent. 14 No person other than the Official Liquidator, who is place in charge of the affairs of the Company in the process of winding up, is authorised with the sanction of the Court to institute any suit, prefer an appeal or other legal proceedings in the name and on behalf of the Company. Held, further, that there is no inconsistency between section 457 of the and section 12 Of the Industrial Disputes (Appellate Tribunal) Act 1950. But in construing the provisions Of section 12 Of the Industrial Disputes (Appellate Tribunal) Act 1950, if there was anything in the , with particular reference to section 457 which was inconsistent with the provisions of Industrial Disputes (Appellate Tribunal) Act 1950, the latter Act shall prevail. Section 457 of the , concerns a very special case, it only lays down a condition precedent to the filing of a case if it has to be by the liquidator of a company in the process of winding up. Section 12 of the Industrial Disputes (Appellate Tribunal) Act 1950 is the usual statutory provision which permits an appeal to be presented to the Appellate Tribunal, which otherwise would not lie, by any party who is aggrieved by an award; it does not either in express terms or by necessary implication override, abrogate or modify the provisions Of section 457 Of the , nor does it do away with the necessity for the requisite sanction of the court which is a condition precedent so far as the liquidator is concerned to institute any suit or proceedings in the name or on behalf of the company in liquidation. In the instant case the appeal purported to be filed on behalf of the Company in liquidation through its managing director was wholly incompetent ; and the second appellant, the auctionpurchaser, could not be said to the aggrieved party enabling him to invokes. 12 of the Act.

Special Leave Petition (Civil) Nos. 2081 84 of 1980. From the judgment and order dated the 23rd November, 1979 of the High Court of Kerala at Ernakulam in W.A. Nos. 149, 167, 169 and 170 of 1979. A.S. Nambiar and P. Parameswaran for the Petitioner. k. Sudhakaran Adv. Gen. of Kerala, V. J. Francis and Mustafakani Rowthor for Respondent No. 2. M. M. Abdul Khader and K.M.K Nair for Respondent No. 4, Kerala Public Service Commission. P. Govindan Nair and Mrs. Baby Krishnan for Respondent No. section K. Prabhakaran for the Intervener. The Judgment of the Court was delivered by BAHARUL ISLAM, J. In these special leave petitions, the petitioner assails the judgment and order dated 23rd November, 1979 of a Division Bench of the Kerala High Court dismissing a number of writ appeals. The relevant facts may be stated thus: 2. The Kerala Public Service Commission thereinafter 'KPSC ') invited applications for filling up 130 expected vacancies in the posts of Junior Engineers in the Public Works Department, as per notification published in the Kerala Gazette dated 16th May, 1978. The qualifications specified for the posts were B.Sc. in Civil Engineering or Mechanical Engineering of the Kerala University or its equivalent as prescribed by the special rules of the Kerala Engineering Subordinate Service (General Branch). The applicants had to appear in the written test conducted by the KPSC and there after in an interview held by it. There was a common question paper which contained, in category I, questions in Civil Engineering and in Category II, questions in Mechanical Engineering. Applicants who were qualified in Civil engineering had to answer the 746 questions in Category 1, and those qualified in Mechanical Engineering the questions in Category II. After the written test and the interview, but before a common rank list was prepared by the KPSC as was intened, 8 Writ Petitions were filed in the Kerala High Court by applicants holding Civil Engineering degrees. By these Writ Petitions the preparation of a common rank list and also the procedure of the examination and a method of selection were challenged. It was prayed in the Writ Petitions that the KPSC be directed to effect selection and prepare and publish separate rank lists of selected applicants holding Civil and Mechanical Engineering degrees. It was contended in the applications that the applicants who had qualified in Civil Engineering question paper and answered the questions in Category I on the one hand and those who had qualified in Mechanical Engineering and answered questions indicated in Category II in the question paper could not rationally be included in a common rank list after the interview. The learned Single Judge of the Kerala High Court by a common judgment dated 2nd April. 1979 allowed the Writ Petitions and directed the Government of Kerala and the KPSC to prepare "two lists, namely, one for the Civil Bench and the other for the Mechanical Branch on the basis of examination already conducted". He proceeded: "With respect to it the Service Commission has not yet published the rank list. On receiving information from the Government on the above lines, the Public Service Commission is directed to prepare the two separate rank lists, one for the Civil Bench and other for the Mechanical Branch. On publication of the two lists the Government can request the Service Commission to advise the candidates for appointment to these branches on the basis of the vacancies available in these two branches. The Kerala Government and the KPSC accepted the directions given by the learned Single Judge and proceeded to take steps for the implementation thereof. However, some of the aggrieved respondents in the Writ Petitions filed appeals before the Division Bench of the High Court. The appeals were ultimately dismissed, in view of the fact that the KPSC had advised 239 candidates according to the separate lists for Civil and Mechanical Engineering prepared on the basis of directions given by the learned Single Judge and that these candidates had already been appointed. 747 6. One of the respondents, Shri section Gopa Kumar, who held a Mechanical Engineering degree, was one of the Special Leave Petitioners before us. He challenged the judgment of the Division Bench of the Kerala High Court dated 23rd March, 1979. This Court by an ex parte order dated 23rd April, 1980 dismissed the Special Leave Petition with the following observations . "The prejudice that the petitioner complains of is taking care of by the High Court emphasizing the fact that the petitioner is entitled to exercise his option. It is stated that he has come high in the Common list prepared by the Public Service Commission. It is open to him to choose which wing, Civil or Mechanical, suits him most. In that view, we are unable to perceive any prejudice especially because on his option being exercised for the general or mechanical wing, as the case may be, he will be chosen in terms of his willingness. All SL.Ps dismissed. " (Emphasis supplied) 7. It may be mentioned that preparation of no common list was directed either by the Single judge or by the Division Bench of the Kerala High Court. On the contrary the direction expressiy was for preparation of separate lists for Civil Engineer and Mechanical Engineer candidates as stated above. It has also been stated above that in pursuance of the directions given by the learned Single Judge in his judgment in effect upheld by the Division Bench of the High Court, the Government and the Public Service Commission of Kerala proceeded to prepare separate lists. But facing difficulties, in view of the observation of this Court in its order dated 23rd April 1980 quoted above, the State of Kerala filed a petition before this Court for clarifications. This Court passed the following order dated 11th November, 1980: "We have heard learned Advocate General and Shri A.S. Nambiar on the modification or clarification sought. The actual position has already been explained in the order by this Court dated 28.4.80. There it has been stated clearly that the petitioner will be entitled to exercise his option and then take his turn according to his rank in the common list prepared by the Public Service Commission. 748 Therefore the petitioner will be entitled to a post, if he has exercised his option in terms of this Court 's order and he is high enough in the common list for claiming the post. We have no idea, nor are we concerned, whether such a vacancy has arisen. If a post has become vacant and the petitioner 's turn comes in the common list he is entitled to claim that post under the orders of this Court . The above order, as it appears, also refers to a common list although no common list was directed to be prepared or was prepared by the KPSC. This was obviously an inadvertent mistake. Since there was no common list and since no option was given to the Special Leave Petitioners before us by the judgment of the Kerala High Court, the KPSC faced difficulties in giving effect to the directions given by the High Court. The KPSC therefore has made the Misc. Petition before us for clarifications and directions, particularly praying that the expression "the common list prepared by the Public Service Commission should be deleted. We have heard learned counsel of the parties and perused the judgments of the Kerala High Court passed by the learned Single Judge and the Division Bench. This Court by its order dated 28th April, 1980 dismissed all the S.L.Ps. with observations referred to above. This order as well as the order dated 11th November, 1980 has been subsequently recalled by this Court by its order dated 7th April, 1981, and we do not find any valid ground to reverse the judgments of the High Court. But in view of the difficulties faced by the KPSC and the Government of Kerala, it is necessary to clarify the position and give necessary directions. Clause 4 of the Government order No. G.O.MS. 101/79/PWD&E dated 27th September, 1979 the Government constituted the Kerala Engineering Service (Mechanical Branch) and Kerala Engineering Subordinate Service (Mechanical Branch) with posts prescribed therein. It reads thus: "Government also order that all those who have submitted unconditional options and who possess the required qualifications prescribed in the rules will be appointed by transfer to the respective service. In the case of any category for which the number of options is more than the 749 appointment by transfer aud the junior persons will be admitted, to the services as and when vacancies arise. In case where the number of officers who had submitted options is less than the number of posts, the remaining vacancies will be provided by direct recruitment as provided in rule (9) of the respective special rules. The Chief Engineer & R will implement the above orders forthwith. " Clause 4 gave unconditional options to those in the Kerala Engineering Service (General Branch) to remain in the said branch or to choose the newly constituted Kerala Engineering subordinate Service (Mechanical Branch). As stated earlier the Kerala Government or the KPSC was not directed to prepare a common list. Common List was referred to in the earlier orders in this Court through certain misapprehensions. The KPSC has stated in its counter affidavit to the S.L.P. filed by Shri section Gopa Kumar against the judgment of the High Court that there were directions to the KPSC to prepare two separate rank lists one for Civil Engineering graduates and the other for Mechanical Engineering graduate on the basis of examination already conducted. Accordingly the KPSC prepared the two rank lirts one for Civil Engineering and other for the Mechanical Engineering graduates. The name of Gopa Kumar appears in the latter list. The rank list for Engineering (Civil) contains names of 152 candidates and the other (Mechanical) contains 202 candidates. All the Civil Engineering selected have already been appointed. Shri Gopa Kumar 's lank was 138 in the rank list of Engineers (Mechanical). He will be appointed when his turn comes. We think that the Division Bench of the High Court was right in dismissing the writ appeals, having regard to the developments which have taken place. Accordingly, the special leave petitions are dismissed. There is no order as to costs. P.B.R. Petitions dismissed.

For selection of candidates for the post of junior engineers in the Public Works Department, the State Public Service Commission prescribed a written test in which persons qualified in Civil Engineering could answer questions in category I and those qualified in Mechanical Engineering could answer questions in category II, both of which were contained in the same question paper. After the test and interview but before the common rank list was prepared some candidates impugned the method of selection alleging that the categories of Civil Engineering branch and Mechanical Engineering branch could not be rationally included in a common rank list. A single Judge of the High Court directed the Service Commission to prepare separate lists in respect of each of the two branches. A Division Bench of the High Court dismissed appeals of some of the aggrieved candidates Dismissing the petition for grant of special leave filed by one candidate this Court observed that it was open to the petitioner to choose the Civil or Mechanical Engineering from the "common list" prepared by the Service Commission. When the State came to this Court for clarification of the earlier order, this Court again said that if the candidate 's turn came in The "common list" he was entitled to claim the post under the earlier orders of this Court. Seeking clarification and directions, the State Government prayed that the expression 'common list ' prepared by the Public Service Commission be deleted from the earlier orders of this Court so as to enable the Commission to prepare separate lists in conformity with the High Court 's directions. ^ HELD: The words "common list" mentioned in the two earlier orders of this Court were used through inadvertance. The High Court directed the Public Service Commission to prepare two separate rank lists: one for Civil Engineering Graduates and other for Mechanical Engineering Graduates on the basis of examination already conducted. The Public Service Commission 745 accordingly prepared two rank lists. The name of the petitioner herein appeared A in the list of Mechanical Engineering Graduates and he would be appointed when his turn came. [749 C E]

tition No. 13636/83 & 11760 66/84. (Under Article 32 of the Constitution of India). G. Ramaswamy, A.K. Ganguli, M.K. Ramamurthy, Kapil Sibal, R.K. Garg, section Srinivasan, D.K. Garg, Ms. A. Subha shini, B. Parthasarthi, C.V. Subba Rao, M.A. Krishnamurthy, V. Shekhar, H.S. Mann, Ms. Chandan Krishnamurthy and Ms. Kamini Jaiswal for the appearing parties. The Judgment of the Court was delivered by RANGANATH MISRA, J. These are applications under Article 32 of the Constitution. Petitioner No. 1 in the first Writ Petition is the 341 National Union of All India Radio Staff Artists; petitioner No. 2 is an Announcer of the All India Radio and happens to be the General Secretary of the Union; petitioners No. 3 to 8 are an instrumentalist, a few news readers, announcers and the like. The petitioners in the other writ petitions are seven in number consisting of six announcers and a tanpura player connected with the All India Radio. According to the petitioners, the prevailing practice in All India Radio used to be to offer appointments to various people as Staff Artists at the first instance ordinarily for an initial term of three months and on completion of appropriate formalities appointments used to be offered for a term of three years on contract basis at a minimum monthly fee. After the expiry of the initial period of two years out of the three years period of working which was considered as a period of proba tion contractual engagement up to the age of 55 years was being made available. On selection, as alleged by the peti tioners Staff Artists used to be appointed to various posi tions like Announcer, News Readers, Conductor, Music Com pere, Instrumentalists, Producer and Script Writer in the All India Radio or Producer, Production Assistant, Script Writer, Translator and General Assistant in Doordarshan. In May, 1982 the respondent Union of India bifurcated the Staff Artists into two categories like: (1) Staff Artists to be treated as artists; and (2) Staff Artists to be treated as Government Servants. This decision was conveyed in a letter dated 3.5.82 and opportunity to exercise option to everyone by the end of December, 1983 for final allocation to the two categories was provided. The letter stipulated that those of the Staff Artists who did not opt were to continue under the existing terms and conditions. The first writ petition was filed on 12th December, 1983, challenging the Government 's order of 3.5.82 (Annexure 3) and for a direction to the respondents to treat the Staff Artists at par with regular Government servants and to restrain the respondents from enforcing their direction for exercise of option. The other group of writ petitions was filed on 19th of March, 1984, the challenge therein was also to the same Government letter, and petitioners asked for a direction to the respondents to treat the Staff Artists as Government servants entitled to pensionary benefits. A return was made to the rule in the first writ petition by filing an 342 affidavit by the Under Secretary, Ministry of Information and Broadcasting. The respondents maintained that the Staff Artists did not form one homogeneous group and job require ments of the Staff Artists were different from post to post. It was suggested that the Staff Artists could be convenient ly divided into two groups, namely, those who are appearing or performing before the micro phone and the others who are managing production and connected jobs. It was also pointed out that all Staff Artists did not have the same terms as to remuneration. It was suggested that the terms and conditions governing the Staff Artists after their transformation into Government servants became different. In the interests of quality of broadcasting services, it was claimed, periodical assessments became indispensable and inevitable. The affida vit further stated that the scheme which was enclosed to the letter marked Annexure 3 contained a scheme which had been evolved after due deliberations and there was no prejudice to the Artists if the scheme was allowed to become opera tive. On the 25th of April, 1988, with special reference to the first writ petition and a connected civil appeal which is not before us at this stage, the Director General of All India Radio sent the following communication to the respond ent 's lawyer with a request that the same may be placed before the Court. The letter stated: "Under the directions of Hon 'ble Court, the Government have further examined the aspects of the scheme for artist cate gory to safeguard the rights of the Staff Artists from any arbitrary factors in respect of discharge of duties under their contract of service renewable after satisfactory performance of their services. After careful examination, the Government have now set up three types of committees to protect the rights of the staff artist from any arbitrary factors which are as under: A. Since the renewal of contract is automatic if the records are satisfactory, it would be best to leave it to the Sta tion Director or the Head of the Office concerned to review the contract after verification of the records. In case, the records are not satisfactory, the question of renewal of contract may be considered by a Review Commit tee/Representation Committee as under: B(i) Review Committee (Both for AIR/Doordarshan) 343 (i) Station Director Chairman (ii) Two outside Assessors Members who have expertise in the field to which the Artists belong. B(ii) Representation Committee (Both for AIR/Doordarshan) (i) Director General Chairman Addl. Director General (Programme) (ii) Deputy Director Member General (Administration) (iii) Representatives of Member the Ministry of Information and Broadcasting. I am to request that a Government Counsel may please be briefed accordingly to place the facts before the Honourable Court in the hearing today, i.e., dated 25th April, 88 at 2 P.M." On the basis of what transpired in Court after referring to the said letter, this Court on that date made the following order: "In Civil Appeal No. 384 of 1977 Union of India vs M.A. Chowdhary, AIR 1987 Supreme Court 1526 we have declared that all the Staff Artists of All India Radio are holding civil posts under the Government and they are governed by Article 311(2) of the Constitution of India. In view of the above decision it is no longer necessary to make any further declaration in these petitions that the Staff Artists are Government servants. The Circular dated 3rd May 1982 beating No. 45011/26/80/B(A) issued by the Ministry of Information and Broadcasting, Government of India proceeded on the assumption that the Staff Artists who had entered the service of the All India Radio/Doordarshan under the contracts were not Government servants and that only those Staff Artists specifically mentioned in that Circular could become and be treated as Government 344 Servants provided they satisfied the conditions mentioned therein. In view of the decision referred to above it has now become necessary for the Government to review the entire question covered by the Circular dated 3rd May, 1982. We, therefore, direct the Government of India to review the entire situation and to prepare a fresh scheme in accordance with law having regard to the nature of duties performed by each category of Staff Artists. While preparing such a scheme the Government may also keep in view the cases of Staff Artists who have already exercised their option as provided by the circular dated 3rd May, 1982. Such scheme shall be prepared on or before 31.7.1988. After the scheme is prepared a copy of it shall be made available to all the parties to this case. The parties aggrieved may file objec tions before this Court within August 15, 1988. This case shall come up for directions on 5th September, 1988. " In terms of the direction given on the 25th of April, 1988, a draft scheme framed by the Government has been produced before the Court along with an accompanying affidavit. Paragraph 2 of the said scheme states: "In pursuance of the above mentioned orders, those Staff Artists who opted for becoming 'Government Servants ' and were found fit by duly constituted Screening Committee were treated as Government Servants with effect from 6.3. 1982. Such Staff Artists were made entitled to the same pensionary benefits as are applicable to Government Servants. They were, however, not entitled to any special benefits avail able to them as Staff Artists. Likewise, Staff Artists in the 'Artists ' category. who opted for being treated as 'Artists ' and come over to the new terms and conditions were treated as 'Artists ' with effect from 6.3.1982. " Paragraph 3 provides: "The following categories of Staff Artists/Artists in All India Radio/Doordarshan are, however, still to be treated as Government Servants: 345 (i) Staff Artists who opted for 'being declared as 'Government Servants ' but were not found fit by the Screen ing Committee; (ii) Staff Artists who opted for being treated as 'Artists ' category and were declared as 'Artists ' after screening by the Screening Committee '; (iii) Staff Artists who opted for being treated as 'Artists ' but were not found fit by the Screening Committee for being treated as 'Artists ' and (iv) Staff Artists who did not opt for being treat ed as 'Government Servants ' or for being treated as 'Art ists '. The scheme further indicates: "4. The Government has reconsidered the entire Scheme in the light of the judgment of the Hon 'ble Supreme Court delivered on 25.4.1988 in Writ Petitions Nos. 13636 of 1983 and 11760 66 of 1984 in National Union of All India Radio and Others .v. Union of India. In partial modification of this Ministry 's letter No. 45001/26/80 B(A) dated 3.5.1982 and No. 45011/26/80 B(A) dated 26.8.1983, it has been decided as under: (i) All Staff Artists/Artists working in All India Radio and Doordarshan (except foreign nationals) will be deemed as Government Servants holding civil posts on pre scribed Central Government scales of pay. (ii) All such Staff Artists/Artists working in All India Radio and Doordarshan will be entitled to pensionary and other benefits on the same terms and conditions as are applicable to other Government Servants holding civil posts. They will be governed by all rules and regulations and general instructions issued by Government from time to time like FR and SR, GFR, CCS (CCA) Rules, CCS (Conduct) Rules and Pension Rules etc. All facilities/ benefits avail able to regular Central Government employees will be auto matically applicable to them also on the same terms and conditions as are applicable to regular Central Government servants. However, any special bene 346 fit/concession available to such Staff Artists/Artists of AIR and Doordarshan, in so far these are not in accordance with rules and regulations and general instructions applica ble to Central Government servants, will be withdrawn from the date of issue of these orders. (iii) The date of retirement on superannuation in respect of such Staff Artists/Artists of All India Radio and Doordarshan deemed as Government Servants will be the same as applicable to holders of civil posts in Central Govern ment. (iv) The contribution of such Staff Artists/Art ists working in AIR and Doordarshan made to Contributory Provident Fund (CPF) along with interest thereon will be transferred to their General Provident Fund (GPF). The Staff Artists/Artists working in AIR and Doordarshan deemed as Government Servants will continue to be in their existing categories and grades with regular pay scales. The future recruitment to each grade will be made according to the Recruitment Rules as per procedures prescribed for recruitment to different posts. The posts held by the Staff Artists/Artists working in All India Radio and Doordarshan will stand converted into civil posts from the date of issue of these orders. " The order made by this Court on 25th of April, 1988, was not a final judgment and this Court had directed the Union of India to review the entire situation and to prepare a fresh scheme in accordance with law having regard to the nature of duties performed by each of the categories of Staff Artists. Obviously, the intention of the Court while making the order dated 25th April, 1988, was to have the scheme placed before the Court for consideration. Though the scheme has been styled as a draft scheme, its contents indicate that it has been implemented. The main objection of the petitioners against the present scheme is the stipulation therein that the Staff Artists will be taken as Government servants from the date of the order. According to them, the Allahabad High Court had in its decision dated 12th of July, 1974, given a declaration that all the Staff Artists were Government servants and the said decision was affirmed by this Court in a judgment dated May 7, 1987, reported in ; Union of 347 India vs M.A. Chowdhary. It is the contention of the peti tioners that the benefit of conversion or declaration should be effective from 12.7.1974 and those who were in employment then as Staff Artists should be considered as Government from this date and others who joined after 12.7.74 should be conferred the status of Government servants from the date of joining. There is also a claim by the petitioners to pension for those who have retired after 12.7.1974 and prior to the present scheme. It is the further contention of the peti tioners that while formulating the present scheme the Court 's direction of 25th of April, 1988, has not been strictly kept in view. Reliance has been placed on this Court 's order dated 3rd April, 1984, where it was indicated that failure of Staff Artists to exercise the option should not prejudice their right in any manner and either a fresh opportunity to exercise the option should be given or even in the absence of option the same benefits should be given. Some of the objections which have been raised and are no ticed above seem to be germane and require consideration. This Court 's order of 25th April, 1988, requiring a fresh scheme to be formulated obviously meant that the exercise of option in terms of the order dated 3rd May, 1982, was not taken to be the final date for exercise of option. Opportu nity to exercise fresh option should have been given or perhaps the new scheme could have accepted the position that unless one wanted to be not absorbed he should have been deemed to be accepting absorption. As in the changed setting the class of Staff Artists was really intended to be done away with in due course, such a deeming base should have been accepted for convenient implementation. One class of Staff Artists engaged under contracts wants such status to continue. Otherwise stated, they do not want the contractual base to be changed into employment. While dealing with the Artists as a class it is neces sary that their special status be borne in mind. It is a class of people who are indeed specially privileged either by natural gift or by their own culturing of the article This category of people cannot be equated with ordinary Govern ment servants for every purpose. The All India Radio and the Doordarshan in their normal functioning would to a consider able extent depend upon qualitative and efficient artists in order to make their programmes reach the desired level. The scheme necessarily contemplates a transitional period. The age old practice of the job of the Staff Artists being contractual (whether short or long) is being given up and contractual employment is being substituted by status based Government service. If there are really efficient Artists of different 348 classifications who do not want to be branded as Government servants, there is no immediate justification for discontin uing and disturbing them in toto. The transitional period could be elongated to accommodate the appropriate category of Artists not willing to be absorbed as Government serv ants. Of late, Government themselves are having a re look at the matter. It is their stipulation that All India Radio and Doordarshan should be made into autonomous corporations and for that purpose legislation is in the process. What is in contemplation is contrary to what is in the scheme. This means that the matter is still in a fluid stage. It is, therefore, appropriate that either a deeming position should have been accepted in the scheme as indicated above or a fresh opportunity for exercise of option should have been provided. Again, the demand of the above group of artists should have also been considered. The question of deeming the employees as Government servants from the date of the Allahabad High Court 's judg ment is another issue which requires examination. Connected with it would be the question of entitlement to pension. We are of the view that these are aspects which should first be initially examined by a Committee to be set up by the Gov ernment and after a definite view is taken it would be open to the petitioners to approach the appropriate Court to redress the remaining grievances, if any. The matter is such that administrative scrutiny instead of judicial determina tion would be more helpful. We, therefore, refrain from expressing any final view. We reiterate that the order dated 25th of April, 1988, intended a draft scheme to be drawn up for consideration of the Court. The scheme as produced in the Court along with the accompanying affidavit has also been described as a draft scheme. The objections raised by the petitioners to the said scheme are available on the record. We direct that in the appropriate Ministry a High Power Committee be set up for examination of the objections with reference to the terms of the scheme and the final decision be taken by the Government within six months. The views expressed in the present decision be taken into ac count while dealing with the objections for purposes of finalising the scheme. Liberty is given to the aggrieved parties when final decision is taken by Government to move the Court. These writ petitions are disposed of with these directions. No costs. Y. Lal Petition disposed of.

Staff Artists of All India Radio/Doordarshan, after complying with the initial requirements, used to be appoint ed to various positions like Announcer, News Readers, Con ductor, Music Compere, Instrumentalists, Producer and Script Writer etc., on contract basis upto the age of 55 years. In May 1982, Union of India bifurcated the Staff Artists into two categories like (i) Staff Artists to be treated as artists and (ii) Staff Artists to be treated as Government Servants. These two sets of writ petitions have been filed by the Staff artists challenging the said Government deci sion conveyed through circular dated 3.5.1982 and calling upon the staff to exercise option by the end of December, 1983 for final allocation to the two categories aforesaid. In the first writ petition direction is sought to the re spondents to treat the Staff Artists at par with regular government servants and to restrain the respondents from enforcing their direction in regard to their exercise of option and in the other writ petition, the petitioners have asked for a direction to treat the staff artists as govern ment servants entitled to pensionary benefits. The Court by its order dated 25.4.1988, on perusal of the letter together with the scheme, Sent by the Director General of All India Radio and following its earlier deci sion in Civil Appeal No 384 of 1977 Union of India vs M.A. Chowdhary; , declared that all the staff artists of All India Radio are holding civil posts under the Government, and they are governed by Article 311(2) of the Constitution and accordingly inter alia directed the Govern ment of India to review the entire situation and to prepare a fresh scheme in accordance with law having regard to the nature of duties performed by each category of staff artists and further directed the case to come up for directions on 5.9.1988. Thereafter the Government of India formulated a scheme in compliance with the courts order and submitted it to the Court. 340 Disposing of the writ petitions with directions, this Court, HELD: While dealing with the Artists as a class it is necessary that their special status be borne in mind. It is a class of people who are indeed specially privileged either by natural gift or by their own culturing of the article This category of people cannot be equated with ordinary Govern ment servants for every purpose. [348F] The All India Radio and the Doordarshan in their normal functioning would to a considerable extent depend upon qualitative and efficient artists in order to make their programmes reach the desired level. [348G] The age old practice of the job of the staff artists being contractual (whether short or long) is being given up and contractual employment is being substituted by status based Government service. If there are really efficient Artists of different classifications who do not want to be branded as Government servants, there is no immediate justi fication for discontinuing and disturbing them in toto. [348H; 349A] Administrative scrutiny instead of judicial determina tion would be more helpful. The Court therefore directed that in the appropriate Ministry a High Power Committee be set up for examination of the objections with reference to the terms of the scheme and the final decision be taken by the Government within six months. The views expressed in the present decision be taken into account while dealing with the objections for purpose of finalising the scheme. [349E; F G]

minal Appeal No. 136 of 1966. Appeal by special leave from the judgment and order dated January 18, 1966 of the Madras High Court in Criminal Appeal No. 697 of 1965 and referred trial No. 90 of 1965. B. D. Sharma, for the appellant. V. P. Raman and A. V. Rangam, for the respondent. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave against the judgment of the High Court of Judicature at Madras, January 18, 1962, by which the High Court confirmed the conviction of the appellant Periyasamy under section 302, Indian Penal Code, and the 12 3 sentence of death imposed on him. The facts of the case are as follows: Periyasamy was charged with the murder of his wife Kaveri Ammal on the morning of May 11, 1965, at 6 a.m., at a place in Kirambur where they were residing in what is called a shed. Opposite to this shed was another shed in which Periyasamy 's brother with his wife Pappayee (P. W. 1) was residing. Periyasamy and Kaveri Ammal had been married for a period of two years during which time Kaveri Ammal used to go away frequently to her parents ' place, and the motive suggested is that it used to enrage the appellant Periyasamy. On the morning of the day of occurrence, Pappayee heard the cry "Ayyo, ayyo", and she states that she saw Periyasamy striking his wife with a koduval. Pappayee raised an alarm. Periyasamy thereupon threw the koduval away and retired to his shed and taking hold of a rope climbed a tree. He tied one end of the rope to a limb of the tree and another round his neck and jumped, but meanwhile the neighbours had assembled there and they caught him and cut him down from the tree and laid him on a cot. Periyasamy did not die though there is evidence to show that he had some bruises round his neck. Meanwhile a brother of Periyasamy by name Chinna ran to their father and informed him about the occurrence. The father,. without going to verify what he had heard, went over to the police station House and lodged a report, saying that his younger son had informed him that Periyasamy had cut down his wife with a koduval and attempted to hang himself and that he was making the report. In the last sentence of this report, it was mentioned that Pappayee had witnessed the occurrence. The prosecution examined a number of witnesses but we are concerned only with one, namely, Pappayee, P. W. 1, who is the solitary eye witness in the case. It appears that Pappayee changed her statement in the Court of Session by leaving out the name of Periyasamy as the assailant of Kaveri Ammal. She was, therefore, declared hostile by the court and was allowed to be cross examined under section 145 of the Indian Evidence Act. Her previous statement was also brought on the record of the case. This statement of Pappayee forms the foundation of the case against Periyasamy, corroborated by the other evidence about his conduct and the motive for the commission of the offence. The High Court and the court below have acted upon the statement of Pappayee made in the committal court in preference to the statement she made in the Court of Session, and have based the conviction by accepting her previous version. In this appeal, Mr. B. D. Sharma naturally attacked the evidence of Pappayee from various angles and also, tried to establish that the judgment of the 124 High Court did not satisfy the standards for an appellate judgment as laid down by this Court, particularly in a case dealing with the confirmation of a death sentence. We shall, therefore, examine these contentions in detail. The first contention raised by Mr. Sharma is that the Sessions Judge did not comply with the provisions of section 288 of the Code of Criminal Procedure inasmuch as he did not pass any order transferring the earlier statement to the record of the Sessions trial. We have not been able to find in the original record of the case, which was brought to our notice, any order specifying the transfer of the earlier deposition to the record of the Sessions Court under section 288. It appears, however, that the practice of this Court is to ,contradict a witness with the earlier statement and parts there of, after declaring him hostile and then to use the record of the earlier statement as substantive evidence. It may be stated that it is highly desirable that the court should, before the transfer of the earlier statement to the record of the Sessions case under section 288, indicate in ,a brief order why the earlier deposition was being transferred to the record of the trial. This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him. If the matter had rested with the use of the earlier statement without this notice to the accused, we would have found it difficult to rely upon the earlier deposition. We find, however, that Periyasamy was questioned with reference to the statement of Pappayee made before the Committing Magistrate which, the Judge informed him, was marked under section 288 of the Code of Criminal Procedure, and he was asked what he had to say about it. Therefore, although the technical requirement of the section, namely, that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with, there does not appear to be any substantial departure from the requirements of the law. There is also no likelihood of any prejudice to Periyasamy since he was informed. while he was being examined that the statement was being used under section 288, Criminal Procedure Code, and was invited to say what he wished to say in defence. We are, therefore, of the opinion that the High Court and the court below were right in using the statement as substantive evidence which undoubtedly the Code of Criminal Procedure does allow. Mr. Sharma next contended that it has been laid down in a series of cases that when the solitary witness in a case has made ,conflicting statements, it is very risky to rely upon any of the versions and has drawn our attention to a case reported in re Muruga Goundan(1) decided by a Division Bench in which the present Chief Justice of this Court delivered the judgment. We entirely agree. (1) A.I.R 1949 Mad. 125 But there are cases and cases. If the matter rests upon the statement of a witness, who has changed the version and there is nothing further to connect the accused with the offence with which he is charged, there is good ground for acquitting him. We do not think that this is such a case. The facts here go further. Pappayee 's two statements, when they are compared, disclose that the whole of her testimony as given in the court of the Committing Magistrate was again repeated in the Court of Session, except that she left out the name of Periyasamy as the assailant. This appears to have been the result of some pressure upon her. Although she was induced to say in the Court of Session that she had made the earlier statement under pressure of the police and the police threatened to involve her in the murder, we find other clear circumstances from which we can say that the statement made earlier by Pappayee, is definitely to be preferred in the circumstances of this case. We proceed now, to enumerate what those circumstances are. The two sheds are situated opposite to each other and the door of the shed in which Kaveri Ammal was done to death is a kind of matting which Pappayee had stated was then open. This would be so in May, which, being a hot month, makes the people open their doors early in the morning. Therefore, whatever happened inside the shed would be visible to persons living in a shed across the road and Pappayee states in both the statements that she was able to see the occurrence. The fact that she is a close relation must weigh considerably against Periyasamy and we must turn, therefore, to see whether he gave any reasonable explanation why Pappayee should have given the evidence at all against him. His version is that he had gone to fetch some kerosene oil for working a pump and when he came back he found that his wife had been cut to pieces, apparently by some one in his absence. He further added in answer to a question that he was "on talking terms" with Pappayee before he married, suggesting thereby that Pappayee was enraged on being neglected by him after he married Kaveri Ammal. This motive and the explanation about his absence are his explanations to avoid the implications of Pappayee 's incriminating statement. In our opinion, neither of these circumstances is clear enough to make us discard the evidence of Pappayee brought on the record under section 288 of the Code of Criminal Procedure. It seems too much of a coincidence that an unknown murderer lay in wait to kill Kaveri Ammal during the short time her husband was away to buy kerosene oil. Further, it seems difficult to believe that Pappayee was making this statement because she was jilted in some manner by Periyasamy. There is nothing to show that what Periyasamy alleged was at all the truth, and looking to the circumstances of the case, we feel that this is just something which he has thought out in defence without being true. This conclusion is further streng 126 thened by his subsequent conduct on the discovery by him of the murder. What did Periyasamy do? He does not seem to have questioned any one as to how this happened during the short time he was away. On the other hand, he snatched up a rope, tied it to the limb of a tree and tying the other end to his neck jumped down in an attempt to commit suicide. He was fortunate (but not quite so) that some neighbours arrived at the critical moment and saved him from hanging himself. This conduct clearly indicates a feeling of fear or, may be, of remorse. It induced him to attempt to take his own life after he had taken that of his wife. Mr. B. D. Sharma suggested a number of persons who might be the likely assailants of Kaveri Ammal, suggesting the father of Periyasamy or the uncles of the girl and even Pappayee herself. But these suggestions cannot be accepted in the light of the circumstances. If they had been true, the husband would have stood his ground and attempted to see that the right offender was brought to book and not attempted to commit suicide at the first sight of his wife lying murdered at the hands of some one else. Mr. B. D. Sharma argued that the judgment of the High Court had not taken into account all these circumstances. Per haps, the High Court thought that the case was clear enough and did not embark on a detailed judgment. After looking into the record of the appeal case and considering every aspect of the argument which has been advanced before us, we are satisfied that no other conclusion was possible and that the charge had been completely proved against Periyasamy. We, accordingly, order the appeal to be dismissed. R.K.P.S. Appeal dismissed.

In a prosecution for murder the only eye witness having named the appellant as the assailant in her deposition in the committal court, left out his name in her evidence in the Sessions Court. She was declared hostile and was allowed to be cross examined. The Sessions Judge questioned the appellant with reference to the statement of the witness in the committal proceedings and informed him, that it was marked under section 288, Cr. P.C. He however did not pass an order transferring the earlier deposition to the record of the Sessions Court. Treating the previous statement as substantive evidence and relying upon the other circumstances in the case, the Sessions Court and the High Court on appeal convicted the appellant. On appeal to this Court, HELD : The High Court and the Sessions Court were right in convicting the appellant. Although the technical requirement of section 288, namely, that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with there was no substantial departure from the requirements of the law and no prejudice was caused to the appellant since he was informed that the statement was being used under section 288. [124 E G] [Desirability of an order indicating why the earlier deposition was being transferred to the record of the trial court, pointed out. [124 C D]

Civil Appeal No. 2468 of 1987 From the Judgment and order dated 13.5.1987 of the Allahabad High Court in W.P. No. 1822 of 1987. 359 R.K. Jain and R.P. Gupta for the Appellant. S.N. Kacker, Dileep Tandon, R.B. Mehrotra, P.N. Bhatta and R.A. Gupta for the Respondents The Judgment of the Court was delivered by DUTT, J. Both the parties have made elaborate submissions at the preliminary hearing of the special leave petition filed by the appellant Dr. Smt. Kuntesh Gupta. The special leave is granted and we proceed to dispose of the appeal on merit. The appeal is directed against the judgment of the Allahabad High Court dismissing the writ petition of the appellant on the ground of existence of an alternative remedy under section 68 of the U.P. State Universities Act, 1973. The appellant, Dr. Smt. Kuntesh Gupta, was appointed the Principal of Hindu Kanya Mahavidyalaya, Sitapur, U.P., on June 4, 1984 and was confirmed in the said post on May 4, 1985. In view of existence of two unrecognised rival Committees of Management the State Government, in exercise of its power under section 58 of the U.P. State Universities Act, appointed one of the Additional District Magistrates of the District the Authorised Controller of the Institution. The Authorised Controller was entitled to exercise all the powers of the Committee of Management. It appears that the appellant, as the Principal of the Institution, and the Authorised Controller could not see eye to eye with each other and there were disputes and differences between them in regard to the management of the Institution. The differences between them reached to such a degree that the Authorised Controller by his order dated January 27, 1986 suspended the appellant. The order of suspension was, however, stayed by the Vice Chancellor of the University on January 29, 1986. After hearing the appellant and the Authorised Controller, the Vice Chancellor maintained the stay order. Thereafter, the Authorised Controller held an ex parte enquiry and by his order dated April 21, 1986 dismissed the appellant from service in exercise of the powers of the Managing Committee vested in him by Statute 17.06 of the Statutes of the University. Statute 17.06 provides for the giving of an opportunity of being heard to the teacher concerned and prescribes a procedure for enquiry which, according to the appellant, was not followed by the Authorised Controller. A copy of 360 the said order of dismissal was sent to the Director of Education and to the Vice Chancellor for approval, as required under Statute 17.06(3). The Vice Chancellor after hearing the parties, by her order dated January 24, 1987 disapproved the order of dismissal of the appellant on the ground that the charges against the appellant did not warrant her dismissal from service and directed that the appellant should be allowed to function as Principal of the College forthwith. After the said order was passed by the Vice Chancellor reinstating the appellant and granting liberty to the Authorised Controller to impose lesser punishment on the appellant, if deemed necessary, the Authorised Controller without passing any lesser punishment, by his order dated January 27, 1987 allowed the appellant to function as the Principal, but put various restraints and constraints on her powers and duties as Principal and directed her to vacate the quarters in which she was residing. Feeling aggrieved, the appellant moved the High Court under Article 226 of the Constitution of India against the imposition of such restraints and constraints on her powers and duties as the Principal of the College. The High Court, after considering the fact and circumstances of the case, by its judgment dated March 10, 1987 quashed the said order dated January 27, 1987 of the Authorised Controller and directed him to allow the appellant to function as the full fledged Principal of the Institution in accordance with law. The High Court further granted liberty to the Authorised Controller to go ahead with the imposition of minor penalty on the appellant in accordance with law and as provided in the said order of the Vice Chancellor. It appears that while the matter was pending before the High Court, at the instance of the appellant, the Vice Chancellor passed an order dated March 7, 1987, that is to say, three days before the date of the judgment of the High Court, reviewing her earlier order disapproving the dismissal of the appellant from service. By the order dated March 7, 1987 passed on review, the Vice Chancellor approved the order of the Authorised Controller dismissing the appellant from service on the basis of two reports of the Joint Director of Higher Education, U.P., one dated August 1, 1986 and the other dated July 18, 1986, alleging great financial irregularities committed by the appellant. Although the said order dated March 7, 1987 was passed by the Vice Chancellor on review three days before the delivery of the judgment by the High Court, no steps were taken by the Authorised Controller, who was a party in the writ petition, to bring to the notice of the High Court the said order of the Vice Chancellor dated March 7, 1987 361 It is alleged by the appellant that the said order was passed by the Vice Chancellor in collusion with the Authorised Controller with a view to rendering the writ petition of the appellant and also the judgment of the High Court infructuous. While we reject the allegation of the appellant that the said order was passed by the Vice Chancellor in collusion with the Authorised Controller, for there is no material whatsoever in support of that allegation, we are of the view that the Authorised Controller should have brought to the notice of the High Court the order of the Vice Chancellor passed on review. Be that as it may, the appellant again filed a writ petition under Article 226 of the Constitution of India against the said order dated March 7, 1987 of the Vice Chancellor passed on review. The High Court, however, took the view that the impugned order could be challenged on a reference to the Chancellor of University under section 68 of the U.P. State Universities Act, 1973 and, accordingly, dismissed the writ petition on the ground of existence of an alternative remedy. Hence this appeal. It has been strenuously urged by Mr. Jain, learned. Counsel appearing on behalf of the appellant, that the Vice chancellor had no power of review under the Statutes of the University or under the U.P. State Universities Act, 1973 and, as such, the Vice Chancellor acted wholly without jurisdiction in entertaining an application for review filed by the Authorised Controller. On the other hand, it is submitted by Mr. Kacker, learned Counsel appearing on behalf of the Vice Chancellor, that as the two reports dated August 1, 1986 and July 18, 1986 of the Joint Director of Higher Education, U.P., alleging certain grave financial irregularities, were not before the Vice Chancellor, the Vice Chancellor was entitled to review her order and after considering the said reports reviewed her order and approved the order of dismissal of the appellant from service. Further, it is submitted by the learned Counsel that the High Court was justified in not entertaining the writ petition of the appellant, as there was an alternative remedy under section 68 of the U.P. State Universities Act and the impugned order could be challenged before the Chancellor of the University on a reference of the question to the Chancellor under the provision of section 68. It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice Chancellor in considering the question of approval of an order of 362 dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice Chancellor. In the circumstances, it must be held that the Vice Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The R said order of the Vice Chancellor dated March 7, 1987 was a nullity. The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under section 68 of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case., the Vice Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vice Chancellor on review was a nullity; such an order could surely be challenged before the High Court by a petition under Article 226 of the Constitution and, in our opinion, the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under section 68 of the U.P. State Universities Act. As the impugned order of the Vice Chancellor is a nullity, it would be a useless formality to send the matter back to the High Court for disposal of the writ petition on merits. We would, accordingly, quash the impugned order of the Vice Chancellor dated March 7, 1987 and direct the reinstatement of the appellant forthwith to the post of Principal of the Institution. The judgment of the High Court is set aside and the appeal is allowed. There will, however, be no order as to costs. We, however, make it clear that the respondents will be at liberty to initiate a departmental proceeding against the appellant, if they so think fit and proper, on the basis of the allegations as made in the said reports of the Joint Director of Higher Education, U.P. H.L.C. Appeal allowed.

The appellant was the principal of an institution, the management of which had been entrusted to an Authorised Controller under section 58 of the U.P. State Universities Act, 1973. Following upon certain disputes and differences with regard to the management of the institution, the appellant was suspended by the Controller but the order of suspension was stayed by the Vice Chancellor. The Controller, after holding an ex parte inquiry, dismissed the appellant from service in exercise of the power vested in him by the University Statute 17.06 which provided the giving of an opportunity of being heard to the teacher concerned and prescribed a procedure for inquiry. The Vice Chancellor, on the ground that the charges against the appellant did not warrant her dismissal, disapproved the order of dismissal and directed reinstatement of the appellant, granting liberty to the Controller to impose a lesser punishment on her. The Controller passed an order allowing the appellant to function as the Principal but at the same time imposing various restraints and constraints on her powers and duties, which was challenged by her in a petition filed under article 226. The High Court quashed the said order with liberty to the Controller to impose a minor penalty on the appellant in accordance with the order of the Vice Chancellor. Three days before the High Court delivered its judgment, the Vice Chancellor had reviewed her earlier order at the instance of H 358 the appellant, and, on the basis of two reports of the Joint Director of Higher Education alleging that the appellant had committed grave financial irregularities, had approved the order of dismissal passed earlier by the Controller; but the Controller, who was a party to the writ petition did not bring it to the notice of the High Court. The appellant challenged the aforesaid order of the Vice Chancellor passed in review by a petition under article 226 which was dismissed by the High Court on the around of existence of an alternative remedy under section 68 of the U.P. State lUniversities Act. Allowing the appeal, ^ HELD: It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under article 226 on the ground of existence of an alternative remedy. [362C D] In the instant case, the Vice Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vice Chancellor on review was a nullity; such an order could surely be challenged before the High Court by a petition under article 226 and, in our opinion, the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under section 68 of the U.P. State Universities Act. [362D E] 2. It is now well established that a quasi judicial authority cannot review its own order unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice Chancellor. In the circumstances, it must be held that the Vice Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. [361H; 362A B]

Civil Appeal No. 1236 (Nce) Of 1975 Appeal under Section 116A of the R.P. Act from the order date 1.2.84 of the Gauhati High Court in E.P. No. 3 of 1983. C. section Vaidyanathan for the Appellant. Kapil Sibal, K K Lahiri and Mrs. Manik Karanjwala for the Respondent. The Judgment of the Court was delivered by 344 VARADARAJAN, J. This appeal by the respondent in Election Petition No. 3 of 1983 on the file of Gauhati High Court is directed against the judgment of a learned Single Judge, allowing the election petition and setting aside the election of the appellant Horangse from the Longkhim Chre constituency of the Nagaland Legislative Assembly on the ground of corrupt practice, namely, presentation of four red waist coats to three Gaon Burahs and one Barik of Lirise village on 27 10 1982 to induce them to cast their votes in his favour. The respondent/election petitioner, M. Tsubongse who contested as a Congress (I) candidate lost to the appellant who contested as a Naga National Democratic Party candidate (for short 'NNDP ') by a margin of 133 votes in the election held on 10 11 1982. He filed his election petition seeking the appellant 's election to be set aside on the ground that he was guilty of four instances of corrupt practice falling under section 123(1) of the Representation of People Act, 1951 (for short 'the Act ') and on three other grounds, namely: (1) display of a banner with the caption "Do not sell Nagaland to India", a corrupt practice within the meaning of section 123(3A) of the Act (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of section 123(6) of the Act and (3) use of government vehicles for the purpose of the election. The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and he allowed the election petition and set aside the appellant 's election on that ground. It is, therefore, necessary to set out the case of the parties briefly in regard to this single ground. The result of the election held on 10 11 1982 was announced on the day of counting 12 11 1982 by the Returning Officer, Tuesung. The respondent had secured 3082 valid votes while the appellant, who was the Deputy Speaker of the last Legislative Assembly of Nagaland had secured 3215 valid votes and was declared elected by a majority of 133 votes. The respondent alleged in the election petition that the appellant gave four red waist coats to the voters Lisechem, P.W. 11, Lithrongse, P.W. 12, Murimong, P.W. 13 and Lithsaba at 4.00 p.m. On 27 10 1982 for inducing them to cast their votes in his favour in the presence of . Tsarise, P.W. 14 and Tselongse, P.W. 15 of Lirise village who witnessed the offer and reported the matter later to the respondent. 345 The appellant denied that the waist coats were given either by himself or in order to induce the recipients to cast their votes in his favour. His case was that he visited Lirise village some time prior to October 1982 and was received by the villagers who considered him as one of their leaders. In view of the custom of Nagas to receive guests or others and exchange gifts, he sent five waist coats to be given to four Gaon Burabs and the eldest Barik of the village long before the election process started. The waist coats ware not given to procure votes or to induce the recipients to cast their votes in his favour. Thus he denied that he committed and corrupt practice and contended that the election petition is not bona fide and has been filed only to harass him. During the trial the appellant 's case was that he sent the five waist coats as gifts through Tsarise, P.W. 14 in September 1982 and that he did not personally distribute them after the election process had started in order to induce the recipients to cast their votes in his favour. The dispute was thus confined to the date of distribution of the waist coats, namely, whether they were given in September 1982 or on 27 10 1982, as to whether the appellant gave them personally or sent them through P.W. 14 and as to whether they were given to induce the recipients to cast their votes in favour of the appellant or only to keep up the appellant 's promise made in August 1982 to send some gifts in return for the gift made to him E earlier as per custom. The respondent examined Lisechem, P.W, 11, Lithrongse, P.W. 12, Murimong P.W. 13, B. Tsarise, P.W. 14 and Tselongse, P.W. 15 for proving this item of corrupt practice. On the side of the appellant there is the evidence of the appellant R.W. 1, Chupongse, R.W. 3, Krishna Kumar R.W., 4 and Yanstsasi R.W, 5 about this charge. On a consideration of the oral and documentary evidence the learned Judge of the High Court found that this item of charge of corrupt practice is proved beyond reasonable doubt and he accordingly allowed the election petition and set aside the appellant 's election as stated above. However, the learned Judge did not rule out that the appellant had distributed red waist coats in September 1982 as`observed by him in paragraph 15 of his judgement which will be extracted in due course. 346 The appellant, R.W. 1 has denied in his evidence that he went to Lirise village on 27 10 1982 or presented the waist coats personally. He has stated that he visited that village two or three days after 15 8 1982 at the request of the Head Gaon Burah, R.W. 3, and was welcomed by the Gaon Burahs and others where P.W. 14, then a leading worker and member of the NNDP was also present and was taken to the house of R.W. 3 and presented with a shawl as per the custom of the Nagas and that as he had gone there urgently and had not taken anything to make a gift by way of return as per the custom, he promised to send some gifts later and he thereafter ordered under exhibit dated 2 9 1982 for the making of five red waist coats through Krishna Kumar, R.W. 4 and got them from him on 10 9 1982 and sent them in the same month through P.W. 14 being distributed to the Gaon Burahs of Lirise village. He has stated that he filed the nomination paper on 13 10 1982 and that P.W. 14 who was Area Council Member joined the Congress (T) party in the midst of the election and supported the Congress (I) candidate. Krishna Kumar, R.W. 4, the proprietor of a tailoring firm at Kohima has corroborated the evidence of R.W. I about placing of the order exhibit on 2 9 1982 and taking delivery of the waist coats on 10 9 1982. He has stated that exhibit written by the appellant is signed by him and that as the appellant was a known person he delivered the waist coats though exhibit was not surrendered to him on 10 9 1982. The Head Gaon Burah, R.W. 3 has corroborated the evidence of R.W. l that he met the appellant at Longkhim in August 1982 and requested him to visit Lirise village and that he accordingly came to Lirise village and was received in the Mong Mong month and presented with a cloth, and that the appellant regretted that he had not brought anything to be presented by way of return and promised to send waist coats later. He has further stated that P.W. 14 subsequently told him that the waist coats had arrived and he thereupon asked him to distribute them and give one of them to him also and they were given to him and other Gaon Burahs. Yanstasi, R.W. 5 has corroborated the evidence of R.W. 3 about the appellant 's visit, saying that two months before the election held in November 1982 he had gone to Lirise to meet the appellant, and that the appellant was received by the villagers and taken to the Head Gaon Burah 's house and presented with a sangtam cloth and that the appellant regretted that he had not brought any present to be given by him and assured that he would send waist coats later. R.W. 5 was Head Gaon Burah and he became Special 347 D.B. at Seotsing from 15 9 1983. He has denied that he had worked for the appellant in the elections held in 1977 and 1982, in both of which he had been declared duly elected. R.W. 3 has not been cross examined seriously about the month of the appellants visit to Lirise village, namely, Mong Mong month, which according to the evidence of R.W.5 is September in which the Mong Mong festival is celebrated by the Nagas. exhibit C was not filed in the court at the earliest stage. R.W I has stated in his evidence that his wife came across it after he had filed his written statement in the election petition and gave it to him for being Produced during the trial. May be, noreliance could be placed on Ex to find out when the waist coats were ordered to be made and about when they were actually delivered by R.W.4 to the appellant. P.W.14 has not been cross examined regarding the month in which he left the NNDP and joined Congress (I) party, which according to his evidence, was in August 1982. Similarly R.W. I has not been cross examined about when P.W.14 left the NNDP and joined the Congress (I) party, which according to his evidence, was in the midst of the election in which he filed the nomination paper on 13 10 1982. It is not improbable that the appellant had sent the waist coats through P.W.14 who was a prominent member of the NNDP and the Area Council member at that time for being distributed to the Gaon Burahs by way of return of the present of the shawl made to him during his earlier visit as per the custom amongst Nagas to exchange gifts during the visit of important persons like M.L.As. and others. The appellant was the Deputy Speaker of the Nagaland Legislative Assembly at that time. The said custom amongst the Nagas is spoken to even by respondent P.W.1 who has stated in his evidence that normally villagers also would present gifts to visiting M.L.As. and the visiting M.L.As. also would . make presents to the villagers as per the custom of the Nagas. We find no satisfactory reason for rejecting the evidence of R.Ws. 1 to 5. As a matter of fact, even the learned counsel for the respondent in this appeal before the trial court does not appear to have seriously challenged the acceptability of the evidence of these witnesses in the course Or his arguments before the learned Judge. The learned Judge has stated in his judgment in regard to this matter thus: "It has been contended that even if it is assumed that the respondent (appellant in this appeal) had taken delivery of five red waist coats on 10 9 1982 as reflected in exhibit C, this would not rule out the distribution in October 1982. It is further submitted by the learned counsel for the petitioner (respondent in this appeal) that even if 348 distribution of some waist coats had taken place in September 1982 as deposed by R.Ws. 4 and 5, the same is not enough to discard the allegation of distribution of other waist coats in October 1982. This submission is apparently right inasmuch as because some persons had been given in September 1982 in pursuance of assurance made in August 1982 it would not by itself rule out the giving of such gifts in October, more so when the price of one waist coat seems to be around Rs. 100" The sum of Rs. 100 per piece mentioned by R.W.1 in his evidence is the price of each of the blankets which he had distributed to some persons in the village in 1981 and not of each of the waist coats given in 1982. It is not the case of any of the parties that waist coats were presented by or at the instance of the appellant once in September 1982 and again to the same Gaons Burah in October 1982. Nor is it probable that only waist coat would have been presented on both the occasions to the same individuals Even if the evidence of R.Ws. 1 to 5 is considered to be unsatisfactory to prove that the red waist coats were presented only in September 1982 and not in October 1982, that does not mean that the respondent 's case that the red waist coats were given to P.Ws. 11, 12 and 13 on 27.10.1982 to induce them to cast t heir votes in favour of the appellant stands proved. The respondent has to prove his case which is disputed by the appellant independently of the fact whether the appellant has proved his defence or not. Now we proceed to consider the evidence of P.Ws.11 to 15. Lisechem, P.W.11, a Gaon Burah of Lirise village mentioned the date of the appellant 's visit first as 27.9.1982 and then corrected it as 27.10.1982 and again stated that he does not remember the month or dale of receipt of the waist coat by him from the appellant and he has added that it was after the date of the election. He has stated that the appellant came to his house on 27.10.1982 and gave him a red waist coat and asked him to cast his vote in his favour and not to inform others about the presentation of the waist coat and that soon after the appellant left his house, P.Ws. 14 and 15 came to his house and asked him about what had been given to him by the appellant and he thereupon showed that waist coat to them and told them that it was given to him. Lithrongse ' P.W.12, another Gaon Burah of Lirise village has 349 stated that the appellant came to his house at 4.00 p.m. On 27.10.1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that soon after the appellant left his house, P.Ws 14 and 15 came there and asked him as to what was given to him and he thereupon told them that the appellant gave him a waist coat and they asked him to remember it and not to deny it later. He is unable to deny that appellant visited the village in August or September 1982 or to say whether it was in 1981 when admittedly he received a blanket from the appellant on a prior occasion when the appellant was the Deputy Speaker of the Legislative Assembly. It is seen from his evidence that P.W. 15 belongs to the Congress (I) party and that P.W. 14 was previously in the NNDP and had subsequently joined the Congress (I) party. Muri Mong, P.W. 13 of Lirise village has stated in his evidence that the appellant came to his village after 4.00 p.m. On 27.10. 1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that a minute after the appellant left his house, P.Ws. 14 and 15 came there and asked him if a waist coat was presented to him by the appellant. He has denied that P.W. 14 gave the waist coat to him in the first party of September 1982 and that the appellant did not visit his village or present the waist coat on 27.10.1982. He has stated that he is an old man and that he does not remember months and dates. Tsarise, P.W. 14 who was admittedly in the NNDP and a supporter of that party previously claims to have joined the Congress (I) party in August 1982. He has stated in his evidence that the appellant came to Lirise village on 27.10.1982 and visited the houses of P.W.11, Lithsabha and P.Ws. 12 and 13 in that order at about 4.00 p m. and that he and P.W.15 went to those houses within a few minutes after the appellant 's departure from there and those persons individually told them that the appellant gave them a waist coat and asked them to cast their votes in his favour. He has admitted that when he visited the house of P.Ws.11 to 13 and Lithsaba he asked them to remember the date and the time and not to deny it later. He has denied that the appellant sent the red waist coats through him in the early part of September 1982 for distribution amongst Gaon Burahs of Lirise village. Tsalongse, P.W. 15 does not remember the date of the appellant 's visit to Lirise village. He has, stated in his evidence that the 350 appellant came to the village in the election period and asked the people to cast their votes in his favour. He claims to have gone to `the house of P.W. 14 and to have seen from there the appellant visiting the houses of P.W. 11. Lithsaba and P.Ws. 12 and 13 one after, the other. He has stated that he and P.W. 14 went to those houses soon after the appellant left the places and they individually told them that the appellant gave red waist coats and asked them to cast their votes in his favour. He has denied that the appellant neither visited Lirise village nor presented waist coat on 27.10.1982. It is significant to note that though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4.00 p.m. On 27.10.1982 for inducing them to cast their votes in his favour in the presence of P.Ws. 14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent P.Ws. 14 and 15 do not claim in their evidence personal knowledge about the offer presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in his favour. Admittedly, P. Al. 14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places. It is clear that these three witnesses. I l to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember. P W. 14, who was a staunch worker of the NNDP and had switched over to the Congress (I) party to which P.W. 15 belongs, some time before the election. and P.W. 15 are the interested witnesses. P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws. I l to 13 in Lirise village only thereafter. If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour. The evidence of P.Ws. 11 to 13 that P.Ws. 14 and 15 came to their houses within minutes after the appellant left the place and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to them with a request to 351 favour him with their votes, they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable. We are, therefore, not impressed with the evidence of P.Ws.11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and others. On the evidence of R.Ws. 1 to 5, which we accept, we find that the appellant got the waist coats distributed through P.Ws. 14 who was then a staunch worker of the NNDP in September 1982 long before the election process had started as per the custom of Nagas to make gifts in return for the gifts received by dignitaries. The evidence let in by the respondent to prove this item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily. We are, therefore, unable to uphold the judgment of the learned Judge, setting aside the appellant 's election on the ground of the alleged corrupt practice. We accordingly allow the appeal with costs in both the courts and set aside the judgment of the learned Judge. S.R. Appeal allowed.

Tsubongse the election petitioner and the respondent herein who contested from the Longkhim Chre constituency of the Nagaland Legislative Assembly as a Congress (I) candidate in the election held on 10.11.82 lost by a margin of 133 votes to Horangse the appellant and who was the Deputy Speaker of the last legislative Assembly. The respondent filed an election petition on the ground that the appellant was guilty of four instances of corrupt practice falling under Section 123(1) of the Representation of People Act, 1951 and on three other grounds, namely; (1) display of a banner with the caption "do not sell Nagaland to India", a corrupt practice within the meaning of Section 123 (3A) of the Act; (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of Section 123(6) of the Act and (3) use of government vehicles for the purpose of the election. The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and therefore, he allowed the election petition and set aside the appellant 's election on that ground. Hence the appeal. Allowing the appeal, the Court ^ HELD :In an election petition, the petitioner who alleges corrupt practice must prove his case which is disputed by the returned candidate indepen 343 dently of the fact whether the returned candidate has proved his defence or not. [348E] Here on the evidence of R.Ws. 1 to 5, the appellant got the waist coats distributed through P.W. 14 who was then a staunch worker of the Naga National Democratic Party in September, 1982 long before the election process had started, as per the custom of Nagas to make gifts in return for the gifts received by dignitaries. The evidence let in by the respondent election petitioner to prove the item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily. Though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4 p.m. On 27.10.82 for inducing them to cast their votes in his favour in the presence of P.Ws. 14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent, P. Ws. 14 and 15 do not claim in their evidence personal knowledge about the offer on presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in favour. Admittedly, P.W. 14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places. It is clear that these three witnesses, P.Ws. 11 to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember. P. W. 14 who was a staunch worker of the NNDP and had switched over to the Congress (I) Party to which P.W. 15 belongs, sometime before the election, and P.W. 16 are interested witnesses. P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws. 11 to 13 in Lirise village only thereafter. If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour. The evidence of P.Ws. 11 to 13 that P.Ws. 14 and 15 came to their houses within minutes after the appellant left the places and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to then with a request to favour him with their votes, and they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable. The evidence of P.Ws. 11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and another is equally not impressive. Therefore, the appellant cannot be said to have committed any "corrupt practice". [351B C; 350C H]

Appeal No. 2572 (N) of 1972. Appeal by certificate from the Judgment and Order dated 4th April 1972 of the Patna High Court in Civil Writ Jurisdiction Case No. 1121 of 1969. 616 B. P. Singh, for the appellant. Lal Narain Sinha, Solicitor General of India and section P. Nayar, for respondent Nos. 2 and 6. D. Goburdhan, for respondents Nos. 3 5. The Judgment of the Court was delivered by, JAGANMOHAN REDDY, J. The appellant was granted a mining lease on August 30, 1969 by the State of Bihar (Respondent 3) with the prior approval of the Central Government (Respondent 2) for winning a mineral known as Apatite over as area of 1999.634 acres. Respondent 1 filed a writ petition on September 15, 1969 challenging the lease on the ground that he had earlier on March 22, 1965, applied for a mining lease over an area of 280.62 acres in certain villages of Singhbhum District which was included in the lease granted to the appellant, but as no orders were passed by the State Government within the statutory period the application was ,deemed 'to have been rejected. He thereafter filed a revision petition to the Central Government which called for the comments of the State Government. The State Government intimated to the Central Government that it wanted to work the area itself and for that reason had in fact rejected all the applications for this area including that of the first respondent. On receipt of this comment, the Central Government rejected the revision petition of the first respondent. It appears that the appellant had pursuant to an advertisement in the newspapers applied along with others for the grant of a mining lease for phosphatic rock (Apatite) over an area of 4.1 sq. miles in village Khajurdari in Singhibhum District. But all 'the applications were rejected as the State Government had by then decided to work the phosphatic bearing areas in the public sector. Later, however, as 3rd respondent felt that such a venture could be better undertaken by a private party rather than the State Government in view of the dispersed nature of the deposits, whose concentrated and efficient supervision may not be possible through the public sector, it decided to release the area in question to be worked in the private sector. Accordingly permission was sought from the Central Government and an advertisement published in the newspapers for the general information of the interested parties who may be willing to set up a benefication plant for upgrading the low grade Apatite to ensure its use for the production of phosphatic fertiliser and who were capable of making an investment to the extent of Rs. 40 to 50 lakhs. The appellant who is reported to be financially sound submitted a scheme for setting up a benefication plant for upgrading the Apatite. In view of the financial solvency, of the appellant his application was recommended to the Central Government. The Central Government accepted this recommendation and directed the grant of the mining lease in the following terms : " The Central Government in the interest of mineral development, in exercise of the powers conferred by subrule (2) of rule 58 of the Mineral Concession Rules, 1960, 61 7 hereby authorise the State Government to grant mining lease for apatite over the area to Dr. Satya Narain Sinha without following the procedure laid down in sub rule (1) of the said Rule 58 of the Mineral Concession Rules, 1960. Further in exercise of the powers conferred by section 31 of the , the Central Government hereby authorise the State Government to grant mining lease to Dr. Sinha over the area in question which does not form a compact block. The Central Government also, in exercise of the powers conferred by proviso to section 6(1) of the , authorise the State Government to grant mining lease for apatite over the areas to Dr. Sinha in excess of the limit of 10 square miles prescribed in section 6(1) and (b) of the said Act. " Immediately on getting to know of the approval given by the Central Government to the grant of the mining lease to the appellant, the first respondent moved the State Government for a stay and though that application was rejected he made several other attempts but without any success. The last revision application was filed on November 17 1970 under r. 54 of the Mineral Concession Rules hereinafter referred to as 'the Rules ' before the 2nd respondent on which an order dated November 23, 1971 was passed. This order as disclosed fly the 1st respondent in his supplementary affidavit shows that the Central Government had in exercise of their revisional powers under r. 55 of the Rules, set aside the orders of the State Government and directed it to give further consideration and pass appropriate orders within a period of four months in as much as the State Government had not followed the correct procedure in dealing with the application of the 1st respondent. At this stage we may point out that in the writ petition filed by the first respondent though the appellant was a party it seems he did not appear and the proceeding was ex parte. The appellant 's case is that as no notices were served on him, nor was there any proof of service as neither the covers in which the registered notices were sent nor the acknowledgment cards had been returned to the Court, he did not have an opportunity to be heard. No doubt the State of Bihar and the Central Government had opposed the petition but the High Court came to the conclusion that the conditions required for relaxation of the Rules in special cases under section 31 of the (hereinafter termed the Act) read with rr. 58 & 59 of the Rules, were not complied with while according its approval for the grant of the mining lease to the appellant. in this view it allowed the petition and quashed the lease in favour of the appellant. Before us it is contended by the appellant 's learned advocate that the appellant did not have an opportunity of urging before the Court 618 that the writ petition filed by ' the first respondent was not maintain.able, because he is not a person aggrieved as the area for which the ,first respondent had made an application for the grant of mining lease was not included in the area granted to the appellant. He further ,contends that reasons were given by the State of Bihar while recom mending the grant of the lease to the Central Government, which reasons, at any rate one of them as is evident from the order of the Central Government, were approved. There is, according to him, no infringement of the provisions of section 31 of the Act read with rr. 58 & .59 of the Rules. The learned Solicitor General on behalf of the Central Government supports the grant of the mining lease to the appellant on the ground that r. 59 of the Rules is not applicable to the facts of this case inasmuch as the 3rd respondent had not taken any firm decision to reserve the area granted to the appellant, which is a necessary condition of the applicability of that rule. If that rule did not apply then he submits the procedure prescribed in r. 58 which is referred to therein need not be complied with. He further submits that even if r. 59 is applicable, reasons have been recorded by the Central Government for relaxing the Rules as required in section 31 of the Act. In so far as the 3rd respondent the State of Bihar is con cerned, there has been a volte face in its stand before us. After having called for the applications and recommended the lease in favour of the appellant, and after having placed him in a position where he had to incur huge expense, it now wants to contend that the grant of the lease is invalid. Even the first respondent, once he found, that the area for which he applied for a lease was not included in the appel lant 's lease, seems to have perferred to remain absent in the case, but the State Government wants to challenge the validity of the lease which it did not do before the High Court. There is no doubt, as the High Court has pointed out, that where by relaxing the Rules the Central Government intends to authorise in any case the grant, renewal or transfer of any prospecting licence or mining lease, or the working of any mine for the purpose of searching for or winning any mineral, on terms and conditions different from those laid down in the Rules made under section 13 of the Act, it can do 'so for reasons to be recorded in writing. Whether any such reasons can be said to have been recorded in the order authorising the grant of the lease on terms and conditions different from those laid down in the Rules made under section 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable. As already pointed out it is admitted by respondents 2 and 3 that the application made by the first respondent was not in respect of the area which is granted to, the appellant and consequently the first respondent had no interest in the subject matter of the lease. Even 619 though this contention was not urged before the High Court, and in the circumstances adverted to by us could not have been urged, as the appellant did not appear, this Court in an appeal can not only determine the soundness of the decision, but has jurisdiction to determine any point raised before it, such as whether the appeal is competent, whether a party has locus standi to present the petition and whether the petition is maintainable etc. See Ebrahim Aboobakar and Another vs Custodian General of Evacuee Property(1). In Chiranjit Lal Chowdhuri vs The Union of India(2) it was held by this Court that the legal right that can be enforced under article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. In respect of the jurisdiction under article 226 of the Constitution it was laid down in The State of Orissa vs Madan Gopal Rungta(3) that the existence of the right is the foundation of the exercise of jurisdiction of the Court under article 226 of the Constitution. The right to which this Court had adverted as being the foundation for exercising the jurisdiction under article 32 or article 226 of the Constitution, according to The Calcutta Gas Company (Proprietary) Ltd. vs The State of West Bengal and Others(4) is ordinarily the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Subba Rao, J., as he then was, observed in that case : "Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the court seeking a relief thereunder." After citing the above passage in Godde Venkateswara Rao vs Government of Andhra Pradesh and Others(5) the learned Judge who delivered the judgment in this case also observed at p. 181 : "A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression ,,ordinary" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof." In respect of persons who are strangers and who seek to invoke the jurisdiction of the High Court or of this Court, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the Court will exercise its jurisdiction. (1) ; (2) ; (3) [1952] section C. R. 28. (4) [1962] Supp. 3 section C. R. 1. (5) ; 620 In England also the Courts have taken the view that when the, application is made by a party or by a person aggrieved the Court will intervene ex debito justitias, in justice to the applicant, and when it is made by a stranger the Court considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the Court : (see R. vs Thames Magistrates ' Court, ex. p. Greenbaum(1). In this case, however, the first respondent has not challenged the grant of the lease on the ground of ex debito justitiae but has done so on the ground of a direct infringement of his right to be granted a mining lease over 280.62 acres for which the appellant was given a lease along with other area. Since it is now found that no such right of the first respondent has been affected, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition in the High Court is not maintainable. On this short ground, this appeal will be allowed and the writ petition filed by the first respondent in the High Court dismissed. The appellant will have his costs only against the State of Bihar. V.P.S. Appeal allowed. (1)(1957) in Yardley Source Book of English Administrative Law, 1970, p. 228).

The first respondent filed a writ petition in the High Court challenging the grant of a mining lease to the appellant on the ground of a direct. infringement of his right to be granted a mining lease over an area for which he applied for a mining lease and which, according to him, formed part of the area for which the appellant was given the lease. But in fact, the first respondent 's application was not in respect of any part of the area for which the appellant was granted a mining lease. Though the appellant was made party to the proceeding, he did not appear as notices were not served on him. The High Court allowed the petition in the view that there was a violation: of section 31 of the , and rr. 58 and 59 of the Mineral Concession Rules 1960. Allowing the appeal to this Court, HELD : The first respondent had no interest in the subject matter of the lease, and the petition was not maintainable. [618 G H] Though this contention was not urged before the High Court as the appellant did not appear in the High Court, this Court, in appeal, can not only determine the soundness of the decision, but has jurisdiction to determine any point raised before, it, such as, whether the appeal is competent, whether a party has a locus standi to present the petition and whether the petitioner was maintainable. Ordinarily, the foundation for exercising the jurisdiction under Article 32 or Article 226, is the personal or individual right of the petitioner himself, though in cases of writs of habeas corpus or quo warranto, the rule may be relaxed. In respect of persons who are not aggrieved and who seek to invoke the jurisdiction of the High Court or this Court, the matter rests ultimately on the discretion of the Court, and depends on the nature and extent of the right or interest said to have been infringed and whether the infringement affects the petitioner in some way. [619 A B, D, G H] In the present case, the first respondent only alleged direct infringement of his right,but it was found that no right of his had been affected. He was neither aparty nor a person aggrieved or affected and hence had no locus standi to file the petition. [620 B C] Ebrahim Aboobakar and Another vs Custodian General of Evacuee Property, ; , Chiranjit Lal Chowdhuri, vs The , Union of India, ; , The State of Orissa vs Madan Gopal Rungta, [1952] S.C.R. 28, The Calcutta Gas Company (Proprietary) Ltd. vs The State of West Bengal and Others [1962] Supp. 3 S.C.R. 1, Godde Venkateswara Rao vs Government of Andhra Pradesh and Others ; and R. vs Thamples Magistrates ' Court ex. p. Greenbaum, [19571 in Yardley Source Book of English Administrative Law, , referred to.

ivil Appeal No. 2130 and 2131 of 1970. From the Judgment and order dated the 12th February, 1970 of the Mysore High Court in I.T.R.C. Nos. 5 and 6 of 1968. N. A. Palkhivala, and Vineet Kumar, for the appellant. G. section Sharma and section P. Nayar for the respondent. N. A. Palkhivala, section T. Desai, A. G. Meneses, Mrs. A. K. Verma, P. N. Monga, J. B. Dadachani for the Intervener Tribunal Trust Chandigarh. V. section Desai and J. Ramanlurthi for Intervener Saurashtra Trust, Bombay. The Judgment of H. R. Khanna and A. C. Gupta, JJ. was delivered by Khanna, J. M. H. Beg, J. gave a separate opinion. KHANNA, J. The detailed facts of this case have been given in the judgment of our learned brother Beg J. and need not be repeated. The question of law which was referred to the High Court and which has been answered in the negative against the assessee appellant is as follows: "Whether on the facts and in the circumstances of the case, the income, of the Lok Shikshana Trust was entitled to exemption under section 11 of the Income tax Act, 1961, read with section 2(15) of the same Act, for the assessment year 1962 63 ?" "Charitable purpose" was defined in section 4(3) of the Indian Income tax Act, 1922 was as under: "In this sub section 'charitable purpose ' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility. " The definition of "charitable purpose" as given in section 2(15) of the Income tax Act, 1961 (hereinafter referred to as the Act) with which we are concerned reads as under: "(15) 'Charitable purpose ' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. " It would appear from the above that in the definition of "charitable purpose" as given in the Act the words "not involving the carrying on of any activity for profit" have been added at the end of the definition as given in the Act of 1922. We shall see as to what is the effect of the above addition 466 In order to see as to whether the appellant trust is for a charitable purpose, we may first go into the question as to what is the object of the appellant trust. According to Mr. Palkhivala, learned counsel for the appellant, the object of the appellant trust is education, while the stand of Mr. Sharma on behalf of the revenue is that not education but the last mentioned category in section 2(15), viz., the advancement of any other object of general public utility, is the object of tile appellant trust. The reason for the above divergence in the stands of Mr. Palkhivala and Mr. Sharma is that according to Mr. Palkhivala, the concluding words of the definition in section 2(15) of the Act "not involving the carrying on of any activity for profit" do not qualify the first three categories of relief of the poor, education, or medical relief but qualify only the fourth category of "advancement of any other object of general public utility". Once the object of the appellant trust is held to be education, the word trust would, according to Mr. Palkhivala, be held to be for a public purpose as defined in section 2(15) of the Act. In such an event, it would be immaterial whether the object of the trust involves or does not involve the carrying on of any activity for profit. As against that? Mr. Sharma has controverted the submission that the concluding words of the definition, viz., "not involving the carrying on of any activity for profit" qualify only the fourth category of "advancement of any other object of general public utility '. According to Mr. Sharma, the concluding words qualify the first three categories of relief of the poor, education and medical relief also. In any case, submits Mr. Sharma, the object of the appellant trust falls in the fourth category of the definition, namely. "any other object of general public utility. " It is, in my opinion, not necessary to express opinion in this case on the question as to whether the words "not involving the carrying on of any activity for profit" qualify the fourth object, viz., the advancement of any other object of general public utility, or whether they also qualify the other three objects of relief of the poor, education and medical relief, because we are of the view that the object of the appellant trust was not education but any other object of general public utility. Clauses 2, 6, 10, 14, 16 and 18 of the trust deed of the appellant read as under.: "2. The object of the Trust shall be to educate the people of India in general and of Karnatak in particular by (a) establishing, conducting and helping directly or indirectly institutions calculated to educate the people by spread of knowledge on all matters of general interest and welfare: (b) founding and running reading rooms and libraries and keeping and conducting printing houses and publishing or aiding the publication of books, booklets, leaf lets, pamphlets, magazines etc. , in Kannada and other languages, all these activities being started, conducted and carried on with the object of educating the peop]e: 467 (c) supplying the Kannada speaking people with an organ or organs of educated public opinion and conducting journals in Kannada and other language for the dissemination of useful news and information and for the ventilation of public opinion on matters of general public utility; and (d) helping directly or indirectly societies and institutions which have all or any of the aforesaid objects in view. The original Trustee shall have power and authority to spend and utilise the money and the property of the Trust for any of the purposes of this Trust in such manner as to him may appear proper. The original Trustee shall be entitled to operate all the Banking accounts of the Trust. The original Trustee shall have full power to take over on such terms as he may deem fit such concern or concerns or undertakings as, in his opinion, are congenial or conducive to any of the purposes of the Trust. The original Trustee shall be entitled to appoint a Manager or Managers of institutions of the Trust, Editor or Editors and other subordinates for the purposes of carrying out the printing and publication of any newspaper or newspapers, weeklies, monthlies magazines, books or other publications, and shall have power from time to time to delegate To any one or more persons by Power of Attorney or otherwise any one or more of the following powers. (a) To open one or more banking accounts, to operate the same and to deposit and withdraw moneys from the same; (b) To give receipts or discharges for money or property Received by them or any one of them in the course of business carried on by the Trust; (c) To buy or sell paper, ink, machines, books and materials required for the purposes of the business of the Trust: (d) To enter into contracts with agents, dealers and others in the course of the business of the Trust; (e) To employ or remove subordinates and workers necessary for the work; (f) and generally to do all things necessary and expedient in carrying out the business entrusted to him or Them. The original Trustee or Trustees shall not take any remuneration for discharging his or their duties as a Trustee or Trustees provided that this provision shall not preclude a 468 Trustee or Trustees from being paid out of the Trust fund such remuneration as may be deemed proper for carrying out any work and duty in connection with the conduct or management of institutions of the Trust, or with the business of printing, publishing or other activities carried on by the Trust. A Trustee shall be entitled to be paid an expenses that may be incurred by him in connection with his duties as a Trustee including travelling and other expenses. The original Trustee or other Trustees shall not be responsible for any loss occasioned to the Trust in respect of any business or dealings carried on behalf of the Trust unless the same is due to his own fraud or misappropriation or breach of trust and every trustee shall be indemnified by and out of the funds and moneys of the Trust against any loss or damage which the Trustee might suffer in regard to any act, deed, or omission of his in the performance of his duties as a Trustee, including any fines or penalities imposed under the Factory Act or any Labour Legislation or Press Act or any other similar enactment. " The income tax officer sent a communication to the trust on April 27, 1963 to the effect that since the only activity of the trust was printing, publication and sale of newspaper, weekly and monthly journal, the trust carried on an activity for profit and was not entitled to exemption. In reply to that notice the Sole Trustee stated that the above mentioned activities of the trust were covered by clause (c) of the objects clause of the trust deed. It was added that the above object did not involve the carrying on of any activity for profit. In a further communication dated June 26, 1964 the Sole Trustee wrote: "The Trust has four objects in its objects clause one of which is to supply the Kannada speaking people with an organ or organs of educated public opinion etc. (clause 2(c) of Trust Deed). Under this clause we conduct the publication of newspapers. This has not been agreed upon by your honour as a Charitable purpose and we have accordingly preferred appeals for relief. The main object of the Trust is education and this may be achieved by conducting and helping educational institutions having the similar objects as of our l`rust. These are all charitable objects. In case the Trust has a surplus income it cannot be spent on any object other than the objects of the Trust. For the present we have been educating the Kannada speaking people through newspapers and journals and we shall be taking up the other ways and means of education as noted in our trust deed as and when it is possible for Trust. We have no option at all except to spend our income on the objects of our Trust which are all charitable without any doubt or ambiguity. " We have set out above the relevant clauses of the trust deed and the material part of the communications sent by the Sole Trustee. It would 469 appear therefrom that though a number of objects, including the setting up of educational institutions, were mentioned in the trust deed` as the objects of the trust, supplying the Kannada speaking people with an organ of educated public Opinion was also one of those objects. The communication sent by the Sole Trustee to the income tax officer shows that the trust at present is carrying out only the last mentioned object of the trust, namely, supplying the Kannada speaking people with an organ or organs of educated public opinion. The concentration so far of the activities of the trust only on that object is in pursuance of clause 6 of the trust deed, according to which original trustee shall have power and authority to spend and utilise the money and the property of the trust for any of the purposes of the trust in such manner as to him may appear proper. The sense in which the word "education" has been used in section 2(15) is the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. The word "education" has not been used in that wide and extended sense, according to which every acquisition of further knowledge constitutes education. According to this wide and extended sense, travelling is education, because as a result of travelling you acquire fresh knowledge. Like wise, if you read newspapers and magazines, see pictures, visit art galleries, museums and zoos, you thereby add to your knowledge. Again, when you grow up and have dealings with other people, some of whom are not straight you learn by experience and thus add to your knowledge of the ways of the world. If you are not careful, your wallet is liable to be stolen or you are liable to be cheated by some unscrupulous person. The thief who removes your wallet and the swindler who cheats you teach you a lesson and in the process make you wiser though poorer. If you visit a night club, your get acquainted with and add to your knowledge about some of the not much revealed realities and mysteries of life. All this in a way is education in the great school of life. But that is not the sense in which the word "education" is used in clause (15) of section 2. What education connotes in that clause is the process of training and developing the knowledge, skill, mind and character of students by formal schooling. The question as to whether a trust the object of which is to supply the people with an organ of educated public opinion should be considered to be one for education or for any other object of public utility was considered by the Judicial Committee in the case of In re The Trustees of the 'Tribune '. In that case a person who owned a press and a newspaper created by his will by which his property in the stock and goodwill of the press and newspaper was made to vest permanently in a committee of certain members. It was the duty of the said committee of trustees under the will "to maintain the said press and news paper in an efficient condition, and to keep up the liberal policy of the said newspaper, devoting the surplus income of the said press and newspaper after defraying all current expenses in improving the said newspaper and placing it on a footing of permanency". It was also 470 provided by an arrangement made subsequently that in case the paper ceased to function or for any other reason the surplus of the income could not be applied to the object mentioned above, the same should be applied for the maintenance of a college which had been established out our the funds of another trust created by the same testator. There was surplus income in the hands of the trustees after defraying the expenses of the press and the newspaper. Question arose as to whether that income was liable to be assessed in the hands of the trustees. The Judicial Committee held that the object of the settlor was to supply the province of the Punjab with an organ of educated public opinion and this was prima facie an object of general public utility. Their Lordships unequivocally expressed the view that they were not prepared to hold that the property referred to in the various paragraphs of the will was held for the purpose of "education" in the sense that word was used in section 4 of the Indian Income tax Act of 1922. The above decision of the Judicial Committee applies directly to the present case and in view of this decision, we would hold that the object of the appellant trust was "the advancement of any other object of general public utility". It has been pointed out in the earlier part of the judgment that in the definition of charitable purpose as given in section 2(15) of the Act the words "not involving the carrying on of any activity for profit '? have been added at the end of the definition as it was given in section 4(3) of the Indian Income tax Act, 1922. The position as it existed under the Act of 1922 was that once the purpose of the trust was relief of the poor, education medical relief or the advancement of any other object of general public utility. the trust was considered to be for a charitable purpose. As a result of the addition of the words "not involving the carrying on of any activity for profit" at the end of the definition in section 2(15) of the Act even if the purpose of the trust is "advancement of any other object of general public utility", it would not be considered to be "charitable purpose" unless it is shown that the above purpose does not involve the carrying on of any activity for profit. The result thus of the change in the definition is that in order to bring a case within the fourth category of charitable purpose, it would be necessary to show that (1) the purpose of the trust is advancement of any other object of general public utility, and (2) the above purpose docs not involve the carrying on of any activity for profit. Both the above conditions must be fulfilled b. fore the purpose of the trust can be held to be charitable purpose. It is not necessary for the decision of this case, as already mentioned above, to go into the question as to whether the words "not involving the carrying on of any activity for profit" also qualify the first three categories of charitable purpose, namely relief of the poor, education and medical relief. Question then arises as to whether the purpose of the appellant trust can be considered to be one not involving the carrying on of any activity for profit. So far as this question is concerned, we find that the appellant trust started with a sum of Rs. 4.308, 10 As. 9 Pies. The schedule attached to the trust deed dated April 10, 1947 shows that the assets of the trust consisted of printing machines, accessories, motor cars, building, stocks of paper and other miscellaneous things. The total value of 471 the assets was Rs. 2,97658, out of which the value of the building sites and the buildings was Rs. 47,500. As against that, the liabilities of the trust amounted to Rs. 1,24,086. The net value of the assets of the trust rose in 1947 to a figure of Rs. 1,73,571, 14 As. 4 Pies. For the assessment year 1962 63, which is the year under appeal, the total receipts of the trust were of the amount of Rs. 22,55,077. The main sources of the receipts were sales of newspapers and magazines through agents, receipts on account of advertisements, receipts for job printing bills be sides some other minor items. "As against the receipts, the major items of expenditure were the purchase of newsprint, paper, printing types,. printing and other material, the salaries and allowances of the staff, remuneration to news agencies and railway freight. There can, there fore, be no doubt that the trust has been carrying on the business of publishing newspaper and weekly and monthly magazines. The profits from the aforesaid business would also apparently account for the manifold increase in the value of the assets of the trust. The emphasis on business activity of the trust is also manifest from clauses 6, 10, 14, 16 and 18 of the trust deed reproduced above. The fact that the appellant trust is engaged in the business of printing and publication of newspaper and journals and the further fact that the aforesaid activity yields or is one likely to yield profit and there are no restrictions on the appellant trust earning profits in the course of its business would go to show that the purpose of the appellant trust does not satisfy the requirement that it should be one "not involving the carrying on of any activity for profit". It is true that there are some business activities like mutual insurance and co operative stores of which profit making is not an essential ingredient, but that is so because of a self imposed and innate restriction on making profit in the carrying on of that particular type of business. Ordinarily profit motive is a normal incidence of business activity and if the activity of a trust consists of carrying on of a business and there are no restrictions on its making profit. the court would he well justified in assuming in the absence of some indication to the contrary that the object of the trust involves the carrying on of an activity for profit. The expression "business", as observed by Shah J. speaking for the Court in the case of State of Gujarat vs M/s. Raipur. Mfg. Co., though extensively used in taxing statutes, is word of indefinite import. In taxing statutes, it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit. To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure. Whether a person carries on business in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transactions must ordinarily be entered into with a profit motive. By the use of the expression "profit motive" it is not intended that profit must in fact be earned. Nor does the expression cover a mere desire to make some monetary gain out o transaction or even a series of transactions. It predicates a motive which pervades the whole series of transactions effected by the person in 472 the course of his activity. In the case of Commissioner of Income tax vs Lahore Electric Supply Co. Ltd. Sarkar J. speaking for the majority observed that business as contemplated by section 10 if the Indian Income tax Act, 1922, is an activity capable of producing a profit which can be taxed. In the case of the appellant trust the activity of the trust, as already observed earlier, has in fact been yielding profits and that apparently accounts for the increase in the value of its assets. We are not impressed by the submission of the learned counsel for the appellant that profit under section 2(15) of the Act means private profit. The word used in the definition given in the above provision is profit and not private profit and it would not be permissible to read in the above definition the word "private" as qualifying profit even though such word is not there. There is also no apparent justification or cogent reason for placing such a construction on the word "profit". The words "general public utility" contained in the definition of charitable purpose are very wide. These words, as held by the Judicial Committee in the case of All India Spinners ' Association vs Commissioner of Income tax, exclude objects of private gain. It is also difficult to subscribe to the view that the newly added words "not involving the carrying on of any activity for profit" merely qualify and affirm what was the position as it obtained under the definition given in the Act of 1922. If the legislature intended that the concept of charitable purpose should be the same under the Act of 1961 as it was in the Act of 1922, there was no necessity for it to add the new words in the definition. The earlier definition did not involve any ambiguity and the position in law was clear and admitted of no doubt after the pronouncement of the Judicial Committee in the cases of Tribune and All India Spinners ' Association (supra). If despite that fact, the legislature added new words in the definition of charitable purpose, it would be contrary to all rules of construction to ignore the impact of the newly added words and to so construe the definition as if the newly added words were either not there or were intended to be otiose and redundant. The appeals fail and are dismissed but in the circumstances without costs. BEG, J. The. question, answered in the negative in this case by the Mysore High Court, which is now before us after certification of the case under Section 261 of the Income tax Act, 1961 (hereinafter referred to as 'the Act '), was framed by the Income tax Tribunal as follows: "Whether on the facts and in the circumstances of the case, the income of the Loka Shikshana Trust was entitled to exemption under Sec. 11 of the Income tax Act, 1961 read with Sec. 2(15) of the same Act, for the assessment year 1962 63". The appellant is a sole trustee of the "Loka Shikshana Trust", holding properties mentioned in a schedule attached to a deed of trust executed on 19 2 1962 by himself purporting to re declare a trust of 15 7 1935. The total assets of the earlier trust of 1935, known as the 473 "National Literature Publications Trust", consisted of a sum of Rs. 4308.10.9 only. It appears that, under the provisions of the earlier trust, the trustee had carried on a lucrative business of printing, under the name of "Karnatak Prakashana Mandal", at Belgaum, and, thereafter, it was shifted to Hubli where he started publishing a daily newspaper called "Samyukta Karnatak". The printing business must have been lucrative because investments of profits from it, together with some possible "donations", expanded the assets of the redeclared trust of 1962 so much that the schedule attached to the trust deed of 1962 shows their value to be Rs. 2,97,658/ . After deducting the total liabilities of the trust, shown as Rs. 1,24,086.10 annas, the net value of the assets is given as Rs. 1,73,571.14.4. Even if the obvious inference from statements found in the trust deed of 1962? which is part of the statement of the case, showing the assets of the trust of 1953 as well as of the re declared trust of 196, that the trustee was carrying on a fairly lucrative business, the profits of which had been utilised for building up its assets, could possibly be ignored, we find, from the statement of the accounts submitted by the appellant trustee himself to the Income tax Department for the assessment year 1962 63, with which we are concerned, that the trust had mad. quite considerable profits from various activities carried on as a part of its ordinary and regular business. Here, a gross income of Rs. 22,55,077.46 nP is shown. This included Rs. 12,31,954.54 from sales of newspapers and magazines through agents, Rs. 7,29,249.27 from advertisements and notices alone, Rs. 1,27,422.53 as payments of "job printing bills". The sales of its newspapers and journals through retailers brought in Rs. 66,010.68 np. The subscribers of newspapers and journals contributed Rs. 51,7803.74. "Profits" from sales of other publications are shown as Rs. 5040.05 np. Income from "sundry receipts" is given as Rs. 2964.57 np. "profits from the sale of a van and machinery are shown as Rs. 4829.83. Some other income is shown as Rs. 2337.95 Interest on investments is shown as Rs. 1762.71. A glance at items of expenditure shows that nothing was spent for which a deduction could not be claimed by any private concern carrying on a profitable business. These, items of expense consisted of money spent on repairs, of buildings, payments of taxes, purchases of newsprint and other kinds of paper, ink, photographic materials, blocks, binding, stitching and packing materials, payments of salaries, wages and allowances to the staff. After deducting the total expenditure of Rs. 4,92,246.81 from the gross income, the net income for the year is shown as Rs. 30,376.80 np. for which exemption from Income tax is claimed by the appellant on the ground that it is protected from taxation by Section 11 read with Section 2(15) of the Act. The trust deed of 1962, which, as already stated, is a part of the statement of the case, gives the past history of the trust, in the course of a fairly long preamble. It contains the following passage giving some idea of the activities, of the trust, the composition of its present assets as well as of utilisation of its income since 1935: "AND WHEREAS in furtherance of the objects contain ed in the said deed of Trust dated 15th July, 1935, I took 474 over on 17 7 1935 a concern called the Karnatak Prakashana Mandal, Belgaum, and conducted a printing Press for some time at Belgaum, and? thereafter, at Hubli, and printed and published a daily paper "Samyukta Karnatak", and a weekly paper called "Weekly Samyukta Karnatak", which was later called "Karmaveer", and also published certain books, pamphlet, and other literature, as a result whereof the property of the trust increased from time to time, and the said property is today comprised of printing presses, buildings, land and other property which is set out in the schedule hereunder written". The trust deed also contains a reference to what necessitated a redeclaration of the trust. An amended meaning of "charitable purpose", given in Section 2(15) of the Act of 1961, must have given rise to some doubts in the minds of the maker of the trust about the taxability of the income of the trust which was exempted from payment of income tax in the past. He said: "And whereas doubts have arisen regarding the legal validity of the Trust declared in the aforesaid Deed of Trust dated 15th July 1935. AND whereas it became necessary to take steps to remove the said doubts and to prevent similar doubts arising in future, I, Ranganath Ramachandra Diwakar Who has been the only Trustee of the National Literature Publication Trust declared as aforesaid, have obtained legal opinion in the matter of the said Trust and I am desirous, with a view to carrying out public purposes of a charitable nature of re declaring the Trusts in accordance with the legal opinion obtained by me as aforesaid, on which I hold and shall continue to hold the original Trust amount of Rs. 4,308:10.9, and all contributions, additions, accumulations, and acquisitions to the same which are now comprised in the Schedule hereunder written and all the properties, funds, assets, and any conversions or reconversions thereof and the investment in which the same may from time to time be held". The objects of the trust are set out as follows: "2. The object of the Trust shall be to educate the people of India in general and of Karnatak in particular by, (a) establishing, conducting and helping directly or in directly institutions calculated to educate the people by spread of knowledge on all matters of general interest and welfare; (b) founding and running reading rooms and libraries and keeping and conducting printing houses and publishing or aiding the publication of books, booklets, leaflets, pamphlets, magazines ets. in Kannada and other languages all these activities being started, conducted, and carried on with the object of educating the people: 475 (c) supplying the Kannada speaking people with an organ or organs of educated public opinion and conducting journals in Kannada and other languages for the dissemination of useful news and information and for the ventilation of public opinion on matters of general public utility; and (d) helping directly or indirectly societies and institutions which have all or any of the aforesaid objects in view". In addition to the power which the sole trustee had to collect donations and subscriptions for the trust. he had all the powers which the sole manager of a business may have in order to carry it on profitably. He had the power of transferring trust properties and funds if he thought "it expedient in the interest of the objects of the Trust, to transfer the assests and liabilities of this Trust to any other Charitable Trust or institution conducted by such Trust which in the opinion of the original Trustee or the Board of Trustee has objects similar to the objects of this Trust and is capable of carrying out the objects and purposes of this Trust either fully or partially" (Paragraph 17 of the Trust deed). Although, the "original trustee" was not "to take any remuneration" for discharging his duties as a trustee, yet, he was not precluded "from being paid out of the Trust fund such remuneration as may be deemed propellor carrying out any work and duty in connection with the conduct or management of institutions of the Trust, or with the business of printing, publishing or other activities carried on by the Trust". He was to be paid expenses incurred in travelling or otherwise in connection with his duties as a trustee (paragraph 16 of the Trust deed). The "original trustee" could invest trust monies and profits "in any investment authorised by law for the investment of Trust funds or in shares, or securities or debentures of Limited Companies in India or outside" (para 4 of the Trust deed). He had the "power to mortgage, sell, transfer and give on lease or to otherwise deal with the Trust property or any portion thereof for the purpose of the Trust and to borrow monies or raise loans for the purpose of the Trust whenever he may deem it necessary to do so" (para 8 of the Trust deed). Furthermore, the Trustee had the "power and authority to spend and utilise the money and the property of the Trust for any of the purposes of this Trust in such manner as to him may appear proper". lt appears to us that, with this profit making background of the trust, its loosely stated objects the wide powers of the sole trustee, and the apparently profitable mode of conducting business, just like any commercial concern, disclosed not only by the terms of the trust but by the statement of total expenditure and income by the trustee it is very difficult to see what educational or other charitable purpose the trust was serving unless the dissemination of information and expression of opinions through the publications of the trust was in itself treated as the really educational and charitable purpose. The principal arguments advanced on behalf of the appellant trustee are: firstly paragraph 2(c) of the Trust deed only enables the trustee 476 to supply the Kannada speaking people with organs or means for express educated public opinion as a mode of serving the real and expressly mentioned purpose of "education" which must control and determine the true nature of the activities of the trust so that profit making, as an incidental consequence of these activities, was quite immaterial; and, secondly, even if the activities of the trust did not fall within the separate category of, "education" as such, in which case profit yielding became quite irrelevant, but fell under the more general or the 4th and last category of purposes of general public utility specified in Section 2(15) of the Act, the mere fact that the conduct of the printing business was profitable sometimes or even constantly wag not enough to make it an activity carried on "for profit". The first contention rests on the assumption that an express mention of a dominant though general purpose of "education" will enable the Courts to supervise the execution of such a trust as one intended solely for educational purposes. The second submission, accepted by. the Income tax Tribunal but rejected by the High Court, implies that the profit making motive must be specifically and expressly made the object of an activity which is of obvious utility to the public before excerption from taxation can be denied to such an activity. In other words, the added qualification or condition imposed upon a work of "general public utility", before it could pass the test of a charitable purpose, made no difference to the law. According to learned Counsel for the appellant, the amendment was meant to make explicit what was previously only implicit in the law as it stood. The argument thus is that the amendment only clarified without actually changing the law on the subject. The last paragraph of clause (3) of Section 4 of the Indian Income tax Act of 1922 (hereinafter referred to as 'the Act of 1922 ') laid down: " 'charitable purpose ' includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but nothing contained, in clause (i) or clause (ii) shall operate to exempt from the provisions of this Act that part of the income from property held under a trust or other legal obligation for private religious purposes which does not enure for the benefit of the public". It will be noticed that the provision set out above did not really define a "charitable purpose" but purports only to indicate a concept of charity which would include the four categories of objects mentioned there. The four fold classification of charitable purposes has a history in English law. A statute of Elizabeth I which "was not directed so much to the definition of charity as to the correction of abuses which had grown up in the administration of trusts of a charitable nature" (See: Tudor on "Charities" six End. p. 2) had a preamble containing; an illustrative list of charitable objects which was never treated as haustive. It, however, became the practice of Courts "to refer to the preamble as a sort of index or chart in order to determine whether or not a given purpose was charitable". Thus, a purpose was considered, in the eye of law, to be charitable only if it came within the letter or the spirit and inendment of the preamble of the statute of Elizabeth. 477 To give a semblance of order to the rather confusing mass of case law which had accumulated on the subject, attempts were made to ; classify purposes which had obtained recognition by Courts as charitable. Lard Macnaghten, in Income Tax Commissioners vs Pemsel adopted a four fold classification of charitable purposes which had been first put . forward in the course of an argument by Sir Samuel Romilly in Morice vs Bishop of Durham. These were (1) Relief of poverty, (2) advancement of education; (3) advancement of religion; (4) other purposes beneficial to the community not falling under any of the pre ceding heads The last or the residuary category seemed very wide and general. Properly speaking, such a wide category would be interpreted, if it were found in a statute, ejusdem generis with the previous three categories, which were less wide and more specific. The framers of our Act of 1922 must have been attracted by this classification which they adopted with some modifications, "Medical relief" was apparently sub stituted for "advancement of religion". In All India Spinners ' Association vs Commissioner of Income tax, Bombay(3), Lord Wright, while considering the meaning of Sec 4(3) of the 1922 Act, observed (at P. 486) "The Act of 43 Elizabeth (1601) contained in a preamble a list of charitable objects which fell within the Act, and this was taken as a sort of chart or scheme which the Courts adopted as a groundwork for developing the law, in doing so they made liberal use of analogies so that the modern English law can only be ascertained by considering a mass of particular decisions often difficult to reconcile. It is true that Section 4(3) of the Act has largely been influenced by Lord Macnaghten 's definition of charity in Pemsel vs Commissioners for Special Purposes of Income tax ; at p. 583, but that definition has no statutory authority and is not precisely followed in the most material particular; the words of the section are 'for the advancement of any other object of general public utility ', whereas Lord Macnaghten 's words were 'other purposes beneficial to the community '. The difference in language, particularly the inclusion in the Indian Act of the word 'public ' is of importance. " The trend of judicial pronouncements was to construe the words "general public utility", in Section 4(3) of the Act of 1922, very widely. The only serious limitation put on the character of a "general public utility" seems to have been that it clearly excluded the object of private profit making. Thus, in the All India Spinners ' Association case (supra), the Privy Council, while holding that the "primary object" of the Association appeared to be "the relief of the poor", said (at p. 488): 478 "That would be enough prima facie to satisfy the statute. But there is good ground for holding that the purposes of the Association included the advancement of other purposes of general public utility. These last are very wide words. Their exact scope may require on other occasion very careful consideration. They were applied in the Tribune Press case (1939) 66 I.A. 241; 7 I.T.R. (415) without any very precise definition to the production of the newspaper in question under the conditions fixed by the testator 's will. The Board stated (at p. 256) that: 'the object of the paper might be described as the object of supplying the province with an organ of educated public opinion '. and that it should prima facie be held to be an object of general public utility. These words, their Lordship this would exclude the object of private gain, such as an under taking for commercial profit though all the same it would subserve general public utility. But private profit was eliminated in this case". In Commissioner of Income Tax, Madras vs Andhra Chamber of Commerce, this Court interpreting Section 4(3) of the 1922, Act, held (at p. 732): "The expression 'object of general public utility ' in section 4(3) would prima facie include all objects which promote the welfare of the general public". Decision of some cases seems to have revolved round the question whether the body of beneficiaries was large enough to constitute the purpose one of "public utility". Some of the decisions on income for which exemption was claimed on the ground that it was meant for a charitable purpose falling within the wide residuary class perhaps travelled even beyond the "bursting point" to which, according to Lord Russell of Killowen, English Courts had stretched the concept of charity [See: In re Grove Grady]. At any rate, the reason which induced our Government to make an amendment by Section 2(15) of the Act of 1961 was thus stated by the Finance Minister Shri Morarji Desai, in the course of his speech in Parliament explaining the proposed amendment (see: Lok Sabha Debate dated 18 8 1961)(3): "The other objective of the Select Committee, limiting the exemption only to trusts and institutions whose object is a genuine charitable purpose has been achieved by amending the definition in clause 2(15). The definition of 'charitable ' purpose in that clause is at present so widely worded that 479 it can be taken advantage of even by commercial concerns which, while ostensibly serving a public purpose, get fully paid for the benefits provided by them, namely, the news paper industry which while running its concern on commercial lines can claim that by circulating newspapers it was improving the general knowledge of the public. In order to prevent the misuse of this defamation in such cases, the Select Committee felt that the words 'not involving the carrying on of any activity for profit ' should be added lo the definition". (p. 3074). Mr. Palkhivala objected strongly to any reference to the speech of the Finance Minister, who proposed the amendment, for the purpose of finding cut the object of the amendment. He contended that speeches made by Members of Parliament in the course of debates on pro visions enacted were not to be looked at for interpreting the language of the enactment to which we should confine ourselves. He relied on the well known dictum of Rowlatt J., in Cape Brandy Syndicate vs I.R.C., when that learned Judge said: "In a taxing Act one has to look at what is clearly said . one can only look fairly at the language used". It was contended that, as the meaning of words used in Section 2(15) was very clear we need go no further. l am not able to accept this over simplification of the problem before us. To say that the concept of a charitable purpose, either before or after the amendment we are considering, was at all clear or free from considerable ambiguity and difficulty would be to ignore the plethora of not always consistent case law which one can find on the subject and to minimize the difficulties of Courts. "Charitable purpose" has never been at all clearly defined or exhaustively illustrated. We have, therefore, to discover the mischief aimed at by the amendment. It is true that it is dangerous and may be misleading to gather the meaning of the words used in an enactment merely from what was said by any speaker in the course of a debate in Parliament on the subject. Such a speech cannot be used to defeat or detract from a meaning which clearly emerges from a consideration of the enacting words actually used. But, in the case before us, the real meaning and purpose of the words used cannot be understood at all satisfactorily without referring to the past history of legislation on the subject and the speech of the mover of the amendment who was, undoubtedly, in the best position to explain what defect in the law the amendment had sought to remove. It was not just the speech of any member in Parliament. It was the considered statement of the Finance Minister who was proposing the amendment for a particular reason which he clearly indicated. If the reason given by him only elucidates what is also deducible from the words used in the amend cd provision, we do not sec why we should refuse to take it into 480 consideration as an aid to a correct interpretation. It harmonises with and clarifies the real intent of the words used. Must we, in such circumstances, ignore it ? We find that Section 57, sub s (4) of the Evidence Act not only enables but enjoins Courts to take judicial notice of the course of proceedings in Parliament assuming, of course, that it is relevant. It is true that the correctness of what is stated on a question of fact, in the course of Parliamentary proceedings, can only be proved by somebody who had direct knowledge of the fact stated. There is, however, a distinction between the fact that a particular statement giving the purpose of an enactment was made in Parliament, of which judicial notice can be taken as part of the proceedings, and the truth of a disputable matter of fact stated in the course of proceedings, which has to be proved aliunde, that is to say, apart from the fact that a statement about it was made in the course of proceedings in Parliament (See: Rt. Hon 'ble Jerald Lord Strickland vs Carmeld Mifud Bonnici, The Englishman Ltd. vs Lajpat Rai. In the case before us, a reference was made merely to the fact that a certain reason was given by the Finance Minister, who proposed an amendment, for making the amendment. What we can take judicial notice of is the fact that such a statement of the reason was given in the course of such a speech. The question whether the object stated was properly expressed by the language of Section 2(15) of the Act is a matter which we have to decide for ourselves as a question of law. Interpretation of a statutory provision is always a question of law on which the reasons stated by the mover of the amendment can only be used as an aid in interpretation if we think, as I do in the instant case, that it helps us considerably in understanding the meaning of the amended law. We find no bar against such a use of the speech. In Anandji Haridas & Co. Pvt. Ltd. vs Engineering Mazdoor Sangh & Anr., a Division Bench of this Court observed (at p. 949) "As a general principle of interpretation, where the words of a statute are plain, precise, and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is ad missible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible or more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may 481 be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question". The Finance Minister 's speech tells us that the Government was accepting the recommendations of the Select Committee to which the Bill which became the Act of 1961 had been referred. One of the recommendations was: "The Committee is of the opinion that the advancement of an object of general public utility which involves the carrying on of any activity for profit should not come within the ambit of a charitable purpose". [See Gazette of India Extraordinary Part II, Section 2, p. 677(4)]. In Commissioner of Income tax, Gujarat vs Vadilal Lallubhai, this Court, following its earlier decision in Commissioner of Income tax vs Sadora Devi did not consider it at all inappropriate to refer to a Select Committee 's Report for finding out the reason behind an ambiguous provision so as to be able to apply the Mischief Rule. It is too late in the day for Mr. Palkhivala to object to the adoption of such a course in an attempt to apply the Mischief Rule to find out the reason behind an amendment of the law. The case on which Mr. Palkhivala, the learned Counsel for the appellant, relies most strongly for support to his client 's case on merits is: In Re the 'Tribune '(3), where the Privy Council, allowing an appeal from a Full Bench decision of the Lahore High Court, held that the income a Trust, the object of which was described as "supplying the province with an organ of an educated public opinion", was entitled to exemption on the ground that it was a trust for a purpose of "General public utility" and not just for propagating any political views. It was also held there that such a trust would not fall within the category of Trusts for education in the sense in which that term appears in Section 4 of the Act of 1922. The Privy Council, after observing that the Chief Justice and Addison, J., of the Lahore High Court, had laid some stress on the fact "that the Tribune newspaper charges its readers and advertisers at ordinary commercial rates for the advantages which it affords", said (at p. 422): "As against this the evidence or finding do not disclose that any profit was made by the newspaper or press before 1918 and it is at least certain that neither was founded for private profit whether to the testator or any other person. By the terms of the trust it is not to be carried on for profit to any individual. It cannot, in their 482 Lordships ' opinion, be regarded as an element necessarily present in any purpose of general public utility, that it should provide something for nothing or for less than it costs or for less than the ordinary price. An elemosynary element is not essential even in the strict English view of charitable uses (Commissioners vs University College of North Wales , 414)". It seems clear to us that the amended provisions, Section 2(15) in the Act of 1961, was directed at a change of law as it was declared by the Privy Council in the Tribune case (supra). The amended provision reads as follows: "section 2(15) 'charitable purpose ' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit;" It is apparent that, even now, charitable purpose has not been defined. The four fold classification, which was there in the Act of 1922, is there even in the amended provision, but the last or general category of objects of "general public utility" is now qualified by the need to show that it did not involve profit making. The question before us, therefore is: What is the meaning or purpose of introducing the limitation" not involving the carrying on of any activity for profit" ? The contention of Mr. Palkhivala is that it merely indicates that, as was held in the Tribune case (supra) and other cases, the purpose must not be private profit making or, in other words, the benefit must be to an object of "general public utility". This involves reading of the word "private" before "profit" which is quite unjustifiable. Furthermore, if that was the sole purpose of the amendment, we think that the amendment was not necessary at all. It had been declared repeatedly by the Courts even before the amendment that activities motivated by private profit making fell outside the concept of charity altogether. We think that it is more reasonable to infer that the words used clearly imposed a new qualification on public utilities entitled to exemption. It was obvious that, unless such a limitation was introduced, the fourth and last category would become too wide to prevent its abuse. Wide words so used could have been limited in scope by judicial interpretations ejusdem generis so as to confine the last category to objects similar to those in the previous categories and also subject to a dominant concept of charity which must govern all the four categories. But, the declaration of law by the Privy Council, in the Tribune case (supra), had barred this method of limiting an obviously wide category of profitable activities of general public utility found entitled to exemption. Hence, the only other way of cutting down the wide sweep of objects of "general public utility" entitled to exemption was by legislation. This, therefore, was the method Parliament adopted as is clear from the speech of the Finance Minister who introduced the amendment in Parliament. 483 The word "involve" does not, it seems to me, necessitate the bringing out of the profit motive of an activity expressly in the deed of trust as was suggested by the learned Counsel for the appellant. The dictionary meaning of the word 'involve ' is: "to entangle; to include; to contain; to imply" (see; The Shorter Oxford English Dictionary III Edn. p. 1042). All profit making, even as a mere by product, would have been covered by the word "involving", which is of wide import, if this word had stood alone and by itself without further qualifications by the context. The use of the words "for profit", however, shows that the involvement of profit making should be of such a degree or to such an extent as to enable us to infer it to be the real object. As a rule, if the terms of the trust permit its operation "for profit", they become prima facie evidence of a purpose falling outside charity. They would indicate the object of profit making unless and until it is shown that terms of the trust compel the trustee to utilise the profits of business also for charity. This means that the test introduced by the amendment is: Does the purpose of a trust restrict spending the income of a profitable activity exclusively or primarily upon what is "charity" in law ? If the profits must necessarily feed a charitable purpose, under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test now is, more clearly than in the past, the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on "charity". If that obligation is there, the income becomes entitled to exemption. That, in our opinion, is the most reliable test. The difficult question, however, still remains: what is the meaning of "charitable purpose" which is only indicated but not defined by Section 2(15) of the Act ? It seems to me that a common concept or element of "charity" is shared by each of the four different categories of charity. It is true that charity does not necessarily exclude carrying on an activity which yields profit, provided that profit has to be used up for what is recognised as charity. The very concept of charity denotes altruistic thought and action. Its object must necessarily be to benefit others rather than one 's self. Its essence is selflessness. In a truly charitable activity any possible benefit to the person who does the charitable act is merely incidental or even accidental and immaterial. The action which flows from charitable thinking is not directed towards benefitting one 's self. It is always directed at benefitting others. It is this direction of thought and effort and not the result of what is done, in terms of financially measurable gain, which determines that it is charitable. This direction must be evident and obligatory upon the trustee from the terms of a deed of trust before it can be held to be really charitable. We think that this governing idea of charity must qualify purpose of every category enumerated in Section 2(15) of the Act of 1961. We think that the words introduced by the Act of 1961 to qualify the last and widest category of objects of public utility were really intended to bring out what has to be the dominant characteristic of 484 each and every category of charity. They were intended to bring the last and most general category in line with the nature of activities considered truly charitable and mentioned in the earlier categories. Coming now to the deed of trust before us, we find that the word "education" is mentioned by the maker of the trust in a rather ceremonial or ritualistic fashion as a label for what he considers to be charitable object. The third set of objects, in clause 2 of the deed does not appear to be stated there merely as a means of serving the general purpose of "education" separable from these objects in clause (c). On the other hand, there are strong grounds for believing, in the light of other provisions and profit making activities and background of the trust, that the object of education was mentioned in the deed only as a convenient cloak to conceal and serve the real and dominant purpose of clause 2(c) which was to run a profitable newspaper and publishing business without paying the tax on it. Just as mere making of profit as a consequence or incident of altruistic activity is not decisive of the real purpose or object of the activity, so also the carrying on of a business for profit does not cease to be so merely because losses are actually incurred in certain years or because those who carry it on call it "education". It would be difficult to find any commercial activity which makes profits always or which expressly gives out that its existence depends upon profit making although, in practice, and, ultimately, its continuance may depend on profit making. A newly started business may, initially, have to run at a loss; but, at a later stage, it may earn magnificent profits. Therefore, test of the real character or purpose of an activity cannot be whether its continuance is made to depend upon profits resulting from it or not. Such a test would be artificial and specious. I do not think that the qualification introduced by Section 2(15) of the Act of 1961 was intended to compel Courts to look for the conditions on which continuance of activities of public utility is made to depend. If profit making results from them and these profits can be utilised for non charitable purposes the trust which makes this possible would not be exempt from paying income tax. In the trust deed before us, as we have already indicated, the trustee had not only wide powers of utilisation of trust funds for purposes of the trust but could divert its assets as well as any of the funds of the Trust to other institutions whose objects are "similar to the objects" of the trust and of "carrying out the objects and purposes of this trust either fully or partially". The whole deed appears to me to be cleverly drafted so as to make the purpose of clause 2(c) resemble the one which was held to be protected from income tax in the Tribune case (supra). Indeed the very language used by the Privy Council in the Tribune case (supra), for describing the objects of the Trust in that case, seems to have been kept in view by the draftsman of the trust deed before us. And, we find that the power of diverting the assets and income of the Trust although couched in language which seems designed to counsel their real effect is decisive on the question whether the trust is either wholly or predominantly for a charitable purpose or not. The trustees is given the power of deciding what 485 purpose is allowed to or like an object covered by the trust and how it is to be served by a diversion of trust properties and funds. If the trustee is given the power to determine the proportion of such diversion, as he is given here, the trust could not be said to be wholly charitable. He could divert as much as to make the charitable part or aspect, if any, purely illusory. Indeed, this was the law even before the qualifying words introduced by the 1961 Act. [See: East India Industries (Madras) Pvt. Ltd. vs Commissioner of Income tax, Madras(1), Commissioner of Income tax, Madras vs Andhra Chamber of Commerce(2), Md. Ibrahim Riza vs Commissioner of Income tax, Nagpur(3)]. Such a "trust" would be of doubtful validity, but I refrain from further comment or any pronouncement upon the validity of such a trust as that was neither a question referred to the High Court in this case nor argued anywhere. The amendment of the 1961 Act considered by us compels closer scrutiny of deeds of ostensibly charitable trusts with a view to discovering their real purposes by analysing the effects of their terms and what they permit. It narrows the scope of exemption from income tax granted at least under the last and widest category of charitable trusts mentioned in Section 2(15) of the Act as was held in Commissioner of Income tax, West Bengal II vs Indian Chamber of Commerce(4). We are in agreement with the view expressed in the Tribune case (supra) to the extent that we think that a trust such as the one considered there does not, just like the trust before us, fall within the category of education, as such, mentioned in the statutory elucidation of charity, which was repeated in the 1961 Act, with an added qualification of the last and widest category. Although the term "education", as used in Section 2(15) of the Act, seems wider and more comprehensive than education through educational institutions, such as Universities, whose income is given an exemption from income tax separately under Section 10(22), provided the educational institution concerned does not exist "for purposes of profit", yet, it seems to me that the educational effects of a newspaper or publishing business are only indirect, problematical, and quite incidental so that, without imposing any condition or qualification upon the nature of information to be disseminated or material to be published, the mere publication of news or views cannot be said to serve a purely or even a predominantly educational purpose in its ordinary and usual sense. The purposes with which we are concerned no doubt parade under the guise or caption of "education". They are found stated in clause 2(c) of the deed. This clause speaks of a supply of "organs of educated public opinion" to Kanada speaking people and of a presumed need for "useful" information and "ventilation" of views on "matters of public utility". It is left to the Trustee to decide which class of people is "educated" so as to be permitted to voice its views through these organs. He is also to decide what is "useful" and what is harmful and what is a matter of "general public utility". If, as it seems to 486 us to be the position here, the Trustee is the sole judge of how these presumed needs are to be satisfied, he could certainly cater for them in a manner which could be considered debased or offensive by people of good taste with a proper sense of values. I do not mean to cast the slightest reflection on the manner in which the appellant trustee conducts his business or on the quality or value of materials found in his newspapers or other publications. We have no evidence and no finding on these aspects of the case before us. All I would like to point out here is that the trust leaves it entirely to the sweet will of the sole trustee to decide all questions relating to policy or the way in which the needs mentioned in clause 2(c) are to be met. Provision for their satisfaction could be made in a manner which could be very lucrative. This is the most relevant consideration in ascertaining the purpose of the trust from the point of view of profit making. Judging from the facts set out in the trust deed itself, the sole trustee had managed to make the satisfaction of the needs mentioned above a highly profitable business. The deed puts no condition upon the conduct of the newspaper and publishing business from which we could infer that it was to be on "no profit and no loss" basis. I mention this as the learned Counsel for the appellant repeatedly asserted that this was the really basic purpose and principle for the conduct of the business of the trust before us. This assertion seems to be based on nothing more substantial than that the trust deed itself does not expressly make profit making the object of the trust. But, as I have already indicated, the absence of such a condition from the trust deed could not determine its true character. That character is determined for more certainly and convincingly by the absence of terms which could eliminate or prevent profit making from becoming the real or dominant purpose of the trust. It is what the provisions of the trust make possible or permit coupled with what had been actually done as without any illegality in the way of profit making, in the case before us, under the cover of the provisions of the deed, which enable us to decipher the meaning and determine the predominantly profit making character of the trust. For the reasons given above, I think that judgment of the Mysore High Court must be and is affirmed, but, in the circumstances of the case, the parties will bear their own costs. V.M.K. Appeals dismissed.

Section 2(15) of the Income tax Act provides that 'charitable purpose ' includes relief of the poor, education medical relief. and the advancement of any other object of general public utility. The appellant is a sole trustee of the "Loka Shikshana Trust", holding properties mentioned in a schedule attached to a deed of trust executed on 19 2 1962 by himself purporting to re declare a trust of 15 7 1935. The total assets of the earlier trust of 1935 consisted of a sum of Rs. 4308.109 only. Under the provisions the earlier trust of the trustee had carried on a lucrative business of printing at Belgaum, and, thereafter, he started publishing a daily newspaper. The value of the redeclared trust of 1962 stood at Rs. 2,97,658/ . Clause 2 of the trust deed provided that the object of the Trust shall be to educate the people of India in general and of Karnatak in particular by (a) establishing conducting and helping directly or indirectly institutions calculated to educate the people by spread of knowledge on all matters of general interest and welfare; (b) founding and running reading rooms and libraries and keeping and conducting printing houses and publishing or aiding the publication of books, booklets, leaflets, pamphlets, magazines etc,, in Kannada and other languages, all these activities being started, conducted and carried on with the object of educating the people; (c) supplying the Kannada speaking people with an organ or organs of educated public opinion and conducting journals in Kannada and other language for the dissemination of useful news and information and for the ventilation of public opinion on matters of general public utility; and (d) helping directly or indirectly societies and institutions which have all or any of the aforesaid objects in view. The Income tax officer sent a communication to the trust on April 27, 1963 to the effect that, since the only activity of the trust was printing, publication, and sale of newspaper. weekly and monthly journal, the trust carried on an activity for profit. The claim of the sole trustee was rejected, and, having been unsuccessful through out the appellant has preferred this appeal after certification of the case under section 261 of the Income tax Act, 1961. Dismissing the appeal, ^ HELD: (Per H. R. Khanna and A. C. Gupta, JJ.) (1) It is not correct to say that the word "profit" in section 2(15) of the Act means private profit. The word used in the definition provision is profit and not private profit and it would not be permissible to read in the definition the word 462 "private" as qualifying profit even though such word is not there. There is also no apparent justification or cogent reason for placing much a construction on the word "profit". [472B] The words "general public utility" contained in the definition of charitable purpose are very wide. These words exclude objects of private gain [472C] All India Spinners ' Association vs Commissioner of Income tax, , relied on. It is also not correct to say that the newly added words "not involving the carrying on of any activity for profit" merely qualify and affirm what was the position as it obtained under the definition in the Act of 1922. If the legislature intended that the concept of charitable purpose should be the same under the Act of 1961 as it was in the Act of 1922, there was no necessity for it to add the new words in the definition. The earlier definition did not involve any ambiguity. and the position in law was clear and admitted of no doubt after the pronoumcement of the Judicial Committee in the Tribune case and in the case of All India Spinners ' Association. If despite that fact, the legislature added new words in the definition of charitable purpose, it would be contrary to all rules of construction to ignore the impact or the newly added words and to so construe the definition as it the newly added words were either not there or were intended to be otiose and redundant. [47CC E] (ii) The sense in which the word "education" has been used in section 2(15) is the systematic instruction, schooling, or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. The word "education" has, not been used in that wide and extended sense according to which every acquisition of further knowledge constitutes education. According to this wide and extended sense, travelling is education, because as a result of travelling you acquire fresh knowledge. Likewise, if you read newspapers and magazines, see pictures, visit art galleries, museums and zoos, you thereby add to your knowledge. Again, when your grow up and have dealings with other people, some of whom are not straight, you learn by experience and thus add to your knowledge of the ways of the world. If you are not careful, your wallet is liable to be stolen or you are liable to be cheated by some unscrupulous is liable to be stolen or you are liable to be cheated by some unscrupulous person. The thief who removes your wallet and the swindler who cheats you teach you a lesson and in the process make you wiser though poorer. If you visit a night club, you get acquainted wit and add to your knowledge about some to the not much revealed realities and mysteries of life. All this in a way is education in the great school of life. But, that is not the sense in which the word "education" is used in clause (15) of section 2. What education connotes in that clause is the process of training and developing the knowledge, skill mind, and character of students by formal schooling. [469C F] (iii) The fact that the appellant trust is engaged in the business of printing and publication of newspaper and journals and the further fact that the afore said activity vields or is one likely to yield profit and there are no restrictions on the appellant trust earning profits in the course of its business would go to show that the purpose of the appellant trust does not satisfy the requirement that it should be one "not involving the carrying on of any activity for profit." [471C D] In re The Trustees of the 'Tribune , State of Gujarat vs M/s Raipur Mfg. Co., [1967] 1 S.C.R. 618, and Commissioner of Income tax vs Lahore Electric Supply Co. Ltd., , referred to. (i) It has been declared repeatedly by the Courts, even before the addition of the words "not involving the carrying on of any activity for profit" to the definition of "charitab1e purpose". that activities motivated by private profit making fell outside the concept of charity altogether. It is more reasonable to infer that the words used clearly imposed a new qualification on public utilities entitled to exemption. It was obvious that, unless such a limitation was introduced, the fourth and last category would become too wide to prevent 463 its abuse. Wide words so used could have been limited in Scope by judicial interpretations ejusdem generis so as to confine the last category to objects similar to those in the previous categories and also subject to a dominant concept of charity which must govern all the four categories. But, the declaration of law by the Privy Council, in the Tribune case had barred this method of limiting an obviously wide category of profitable activities of general public utility found entitled to exemption. Hence, the only other way of cutting down the wide sweep of objects of "general public utility" entitled to exemption was by legislation. This, therefore, was the method Parliament adopted as is clear from the speech of the Finance Minister who introduced the amendment in Parliament. [482F H] Income Tax Commissioners vs Pemsel, ; , 583; Morice vs Bishop of Durham, ; All India Spinners ' Association vs Commissioner of Income Tax, Bombay, 1944(12) ITR 482, 486; commissioner of Income Tax, Madras vs Andhra Chamber of Commerce, 1965(55) I.T.R. 722, 732; In re Grove Gredy , 582; Cape Brandy Syndicate vs I.R.C. , 71; Rt. Hon 'ble Jerald Lord Strickland vs Carmelo Mifud Bonnici, A.I.R. 1935 P.C. 34; The Englishman Ltd. vs Engineering Mazdoor Sang & Anr., A.I.R. 1975 S.C. p. 946 @ 949; Commissioner of Income tax Gujarat vs Vadilal Lallubhai, 1972 (86) I.T.R. p. 2; Commissioner of Income tax vs Sadora Devi, 1957 (32) I.T.R. 615 @ 627 [1958] 1 I.S.C. 1 and In re the Tribune, , referred to. (ii) If the profits must necessarily feed a charitable purpose, under the terms of the trust, the mere fact that the activities of the trust yield profit will not alter the charitable character of the trust. The test is the genuineness of the purpose tested by the obligation created to spend the money exclusively or essentially on "charity". If that obligation is there, the income becomes entitled to exemption. That is the most reliable test. The governing idea of charity must qualify purpose of every category enumerated in section 2(15) of the Act of 1961. [483 C D] (iii) Although the term 'education ', as used in section 2(15) of the Act, seems wider and more comprehensive than education through educational institutions, such as Universities, whose income is given an exemption from income tax separately under section 10(22) of the Act, provided the educational institution concerned does not exist "for purposes of profit", yet the educational effects of a newspaper or publishing business are only indirect, problematical and quite incidental so that, without imposing any condition or qualification upon the nature of information to be disseminated or material to be published, the mere publication of news or views cannot be said to serve a purely or even predeminantly educational purpose in its ordinary and usual sense. Judging from the facts set out in the trust deed itself, the sole trustee had managed to make the satisfaction of the needs mentioned in clause 2(c) a highly profitable business. The deed puts no condition upon the conduct of the newspaper and publishing business from which one could infer that is was to be on "no profit and no loss" basis. The High Court was right in coming to the conclusion that the appellant is not entitled to claim exemption from income tax. [485 E G, 486 D] East India Industries (Madras) Pvt. Ltd. vs Commissioner of Income tax Madras, ; Commissioner of Income tax, Madras vs Andhra Chamber of Commerce, ; Md. Ibrahim Riza vs Commissioner of Income tax, Nagpur, (1930) L.R. I.A. 260 and Commissioner of Income tax, West Bengla II vs Indian Chamber of Commerce, ARGUMENTS For the appellant (1) The objects clause of the Trust is so worded as to make it clear that the whole and sole object of the Trust is education of the people of India 464 in general and of Karnatak in particular by the four means or modes set out h in that clause. Those four means or modes are not separate objects of the Trust but are merely the instrumentalities prescribed by the Settlor for achieving the specified object of education. Even assuming for the purpose of argument that sub clauses (a) to (d) of clause 4 of the Trust Deed are separate and distinct objects of the Trust, clause (c) which covers a newspaper or a journal is itself an object falling within the category of "education". (2) The words added in the 1961 Act "not involving the carrying on of any activity for profit" go only with the last head viz "any other object of general public utility" and not with the first three heads. This is put beyond doubt by the comma which appears after each of the first three heads, there being no comma after the fourth head. (3) The present case falls within the second head of "charitable purpose", viz. education. The ruling of the Privy Council in the Tribune case does not apply to the facts of the present case. (4) Assuming that the case does not fall within the category of "education" it falls within the last head "any other object of general public utility, and the qualifying words "not involving the carrying on of any activity for profit" are satisfied. First the word "profit" means private gain, and the qualifying words merely say expressly what was implicit in the 1922 Act at 423, and at 488). Even assuming the word "profit" covers profit for the Trust, involving no private gain, the qualifying words are still satisfied. They require that the object of the Trust should not involve, i.e. entail that the trustees should carry on the activity for profit. No such condition about making profit is imposed by the trust deed. That profit may result from the activities of the Trust in a particular year is wholly irrelevant. Profit making is not the motive of the Trust. (5) Provisions of section ll of the Act clearly reveal that it is implicit in the very scheme of the Act that a business undertaking can be held in trust for an object of general public utility. For the respondent (i) The decision of the Privy Council in the Tribune case squarely applies to the facts of the present case; (ii) For ascertaining that true meaning of the expression "not involving the carrying on of an activity for profit" it was not only permissible but only proper for the Courts to refer to parliamentary debates and other proceedings of the legislature. (iii) Where a business undertaking is held as property of the Trust and income resulting therefrom is wholly applied for charitable purposes such as education, medical relief of the poor, or for any other object of general public utility but with which object the production or income is not linked it would be still exempt. But if that income is utilised only for the purposes of advancing the very object from the advancement of which it is derived it would cease to be exempt. The means and processes adopted by the Trustee for the advancement of the object were such as rendered the object itself as non charitable. (iv) The expression "activity for profit" was much wider in cope than merely a business activity. The legislature had intentionally used the expression "activity" instead of business because in some cases the income produced from the activity may not be legally assessable under the provisions of the Income tax Act, 1961 under the head "Income, profits and gains of business" (Section 28). The expression 'activity for profit" in the context meant activity for profit making; (v) Since the advancement of education was being achieved by means involving the carrying on of an activity for profit, the Trust would still be denied exemption. In other words, the qualifying words added to the definition at the end did not govern merely the last category of charity i.e. the object of general public utility but equally governed the earlier three well known categories namely medical relief, relief of the poor, and education. The effect of the qualifying words "not involving the carrying on an activity for profit" was to deny exemption to trusts which carried on a profit making activity for advancing the object of general public utility.

Special Leave Petition (Civil) No. 7508 of 1988. From the Judgment and order dated 28.6.1988 of the Bombay High Court in Civil Writ Petition No. 800 of 1988. 728 S.N. Kacker, U.R. Lalit, V.D. Joshi, B.D. Joshi, S.C. Bora and Kailash Vasdev for the Petitioner. Dr. Y.S. Chitale, V.A. Bobde, V.J. Francis, N.M. Popli and Miss Almjit Chauhan for the Respondents. The Judgment of the Court was delivered by SEN, J. This special leave petition is directed against the judgment and order of the High Court of Bombay dated June 28, 1988 upholding the election of respondents nos. 1 and 2 Dr. Shantaram Kale and Takiqui Hassan as Mayor and Deputy Mayor respectively, and respondents nos. 3 8 as Members of the Standing Committee at the first meeting of the Aurangabad Municipal Corporation at the Alankar Hall, held on May 6, 1988 at 2 p.m. The issue involved is whether the first meeting of the Corporation called for that day at 2.45 p.m. by the Municipal Commissioner, respondent No. 9, who presided over the meeting, was adjourned for the day or adjourned sine die and therefore had to be called on some subsequent date to be fixed by him and thus necessitated the giving of seven days ' clear notice as required by r. 1(h), Chapter II of the Rules framed under section 453 of the Bombay Provincial Municipal Corporation Act, 1949. Since the question involved was a matter of moment and the affidavits filed by the petitioner Chandrakant Khaire, the leader of the Shiv Sena Party which is the largest single group in the Corporation consisting of 18 Concillors, and by some of the Councillors as well as their supporters, and the affidavits in opposition filed by the Party in power Congress I which has formed a coalition with the splinter groups commanding a majority of 32 Councillors in a House of 60, raise controverted facts as to whether the proceedings of the meeting had been adjourned sine die or merely suspended, we thought it better to have the minutes of the proceedings before us. Shri Vinod Bobde, learned counsel appearing for the Municipal Commissioner has placed the minute books written in Marathi along with a translation thereof in English. At the last occasion we were left with the impression that the word used by the Municipal Commissioner was 'tahkub ' while adjourning the meeting at 2.45 p.m. amidst unprecedented scenes of complete disorder, commotion and pendemonium. We now find the word used in the minutes is 'sthagit ' but in the translation furnished the word used is 'adjourned '. The facts revealed in the counter affidavits filed by the Munici 729 pal Commissioner, Collector and the Superintendent of Police show that a serious law and order situation had arisen due to which both the Collector and the Superintendent of Police had to rush to the venue of the meeting. They both have sworn to the fact that not only the Councillors but many outsiders were present in the hall where the meeting was being held. There were also a large number of supporters of the rival parties, spectators and journalists. The Municipal Commissioner was surrounded by some 20 25 persons apart from the Councillors, one group insisting upon the meeting being adjourned for the day i.e. the Councillors belonging to the majority Shiv Sena Party while the other group consisting of the Congress I Party and the splinter groups forming the coalition demanding that the meeting be continued. The Collector has sworn to the fact that there was 'total confusion and bedlam inside the hall apart from the fact that the entire atmosphere was surcharged with commotion ' and no business could be transacted. He has further sworn to the fact that respondent No. 9, the Municipal Commissioner, the presiding officer, appeared to be 'in a very agitated state of mind ' and told him that he could not hold the meeting in the unruly and disorderly situation prevailing and complained that despite his repeated requests to the Councillors to maintain peace, it had no effect and they kept on shouting, raising slogans and fighting amongst themselves and thereby making it impossible for him to transact any business. The meeting was scheduled to be held at 2 p.m. and respondent No. 9 announced that the polling for the offices of Mayor, Deputy Mayor and Members of the Standing Committee would commence from 2.30 p.m. onwards. What happened thereafter reveals a very disturbing feature which unfortunately has become too common these days and shows the strain through which our democratic system is passing. At about 2.30 p.m. some of the Councillors belonging to the Shiv Sena Party sat on the ballot boxes and others belonging to that Party and its supporters surrounded the Municipal Commissioner demanding that the meeting be adjourned to a subsequent date. Thereupon, the Councillors belonging to the Party in power i.e. Congress I, started shouting at him that the meeting be held later on that day, being apprehensive that if the meeting were to be adjourned, they might lose the contest. There followed shouting of slogans, hurling of abuses and thumping of the tables. The Councillors belonging to the rival groups then started throwing chairs at each other leading to a pandemonium. That the fact that not only Councillors but also many outsiders were present in the hall where the meeting was being held who really had no business to be there, is clearly brought out in the affidavits sworn by the Municipal 730 Commissioner, Collector and the Superintendent of Police. They also show a large number of persons freely entering and leaving the hall. It is apparent from the affidavit of the Superintendent of Police that during the time when all this happened, Viswasrao Deshmukh, Revenue Minister, Government of Maharashtra came into his office and left the premises while he was actually busy in supervising the bandobust. We have been shown photographs showing the presence of a large number of policemen wielding lathis inside the hall. The Collector 's affidavit reveals that the Superintendent of Police personally requested Chagan Bhujbal, a sitting Member of the State Legislative Assembly belonging to the Shiv Sena Party, to keep himself away from the premises of the meeting hall. Be that as it may, it appears that both the officers asked the outsiders to clear out of the hall, requested the Councillors to take their places so as to permit the Municipal Commissioner to transact the business for the day and brought the situation under control. They have sworn to the fact that after the Councillors had calmed down and order was restored, both of them left the hall. Thereafter, the Municipal Commissioner apparently announced on the mike that the meeting would continue and the elections would be held at 4.30 p.m. The petitioner Chandrakant Khaire being the leader of the Shiv Sena Party, filed a written protest at 4.15 p.m. that the meeting had been adjourned by the Municipal Commissioner for the day and therefore the holding of the meeting later on that day would be improper and illegal. After this, the Councillors belonging to the opposition group abstained from participating in the meeting held at 4.30 p.m. at which respondents nos. 1 and 2 Dr. Shantaram Kale and Takiqui Hassan were declared elected as Mayor and Deputy Mayor respectively and respondents nos. 3 8 as Members of the Standing Committee, each of them having polled 32 votes. We had benefit of hearing Shri S.N. Kacker, learned counsel for the petitioner, Dr. Y.S. Chitale, learned counsel appearing for respondents nos. 1 8 and Shri Vinod Bobde, learned counsel appearing for respondent No. 9, the Municipal Commissioner. After a protracted hearing we at the end of the day reserved orders. Having given the matter our anxious consideration, we find it difficult to interfere with the judgment of the High Court. In view of the conflicting affidavits, the petitioner and his supporters asserting that the Municipal Commissioner had adjourned the meeting for the day and respondent No. 2 reiterating the version of the Municipal Commissioner that he had only suspended the proceedings so that the meeting could be held later in the day and the business for 731 the day, namely, election of the Mayor, Deputy Mayor and Members of the Standing Committee, could be transacted, the High Court relying on the 'preponderance of probabilities ' has come to the conclusion that in the facts and circumstances the affidavit of the Municipal Commissioner, respondent No. 9, appeared to be 'more impressive, probable and convincing ' and therefore they were inclined to accept it as 'one inspiring confidence '. Acting upon the affidavit sworn by respondent No. 9, the Municipal Commissioner, the High Court has found as a fact that the meeting was not adjourned for the day or sine die but it was to be held as soon as peace was restored on the very day i.e. the meeting had only been postponed. That is an inference drawn from affidavits and we find no just and compelling reasons to upset the same. Shri S.N. Kacker, learned counsel for the petitioner contends that the High Court erred in proceeding on probabilities in deciding the present matter which has far reaching ramifications affecting the democratic principles. It is said that the High Court having found that because of unruly and provocative atmosphere prevailing in the meeting hall, the Municipal Commissioner was required to adjourn the meeting in order to restore peace and to re arrange the furniture which was helter skelter as the Councillors, it is stated, threw chairs at each other, erred in taking the view that the meeting was not adjourned for the day or sine die but had merely been suspended when in fact, the business for the day, namely, elections to the offices of Mayor, Deputy Mayor and Members of the Standing Committee, could not obviously be transacted. He further contended that when the Municipal Commissioner on his own showing had to adjourn the proceedings in view of the prevailing atmosphere and since he felt it was impossible to continue the election process in that situation, it was wrongly held by the High Court that the meeting was not adjourned sine die when the Municipal Commissioner unequivocally admits that such adjournment was necessary to enable him to decide and announce the time for the resumption of the further proceedings. In substance, the contention is that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die. The learned counsel referred to several law dictionaries to bring out the meaning of the expression 'adjourned sine die ' and relied upon the decision of the Calcutta High Court in Smt. Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and that of the Madhya Pradesh High Court in Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR (1964) MP 195, and also to a passage from Shackleton on the Law & Practice of Meetings, 7th edn. at p. 44 for the 732 submission that in the case of adjournment sine die, the meeting stands adjourned to an unspecified date and as such a fresh notice calling for the meeting is necessary. Dr. Y.S. Chitale appearing for respondents nos. 1 8 and Shri Vinod Bobde for respondent No. 9, on the other hand, contended that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given. It was contended further that there was no warrant for interference under article 136 of the Constitution since a finding of fact has been reached by the High Court on a consideration of the Material on record. It was also contended that the petitioner having failed to make good the averment in the writ petition that the meeting had been 'adjourned for the day ', the High Court was justified in declining to interfere. In order to appreciate the point in controversy, it is necessary to set out the relevant statutory provisions bearing on the question. It is needless to stress that a Municipal Corporation cannot function without the Mayor, Deputy Mayor and Members of the Standing Committee who are entrusted with certain functions and duties under the Act. Sub section (1) of section 19 of the Act provides that 'the Corporation shall at its first meeting after the general elections . . . elect from amongst the Councillors one of its members to be the Mayor and another to be the Deputy Mayor ', their term of office being one year. Sub section (2) of section 20 enacts that 'the Corporation shall at its first meeting after the general elections appoint 12 persons out of its own body to be Members of the Standing Committee '. The term of office of the elected Councillors, as provided by section 6(1), is a period of five years which in terms of sub section (2) is deemed to commence on the date of the first meeting called by the Municipal Commissioner. The relevant Rules framed under section 453 of the Act relating to the proceedings of the Corporation are as follows: "1(b). The first meeting of the Corporation after general elections shall be held as early as conveniently may be on a day and at a time and place to be fixed by the Commissioner, and if not held on that day shall be held on some subsequent date to be fixed by the Commissioner." "1(h). At least seven clear days ' notice shall ordinarily be given of every meeting, other than any adjourned meeting. 733 1(m). Any meeting may, with the consent of a majority of the councillors present be adjourned from time to time to a later hour on the same day or to any other, but no business shall be transacted and, except as is hereinafter provided, no proposition shall be discussed at any adjourned meeting other than the business or proposition remaining undisposed of at the meeting from which the adjournment took place." "2(3). The Presiding Officer may in case of grave disorder suspend the meeting for a period not exceeding three days. " It is therefore quite obvious that the first meeting of the Corporation is of prime importance. Learned counsel for the parties have agreed that cl.(m) may not govern the first meeting of the Corporation but relates to subsequent meetings. The question before us is whether the first meeting 'could not be held on that day ' within the meaning of cl.(b) of r. 1 and therefore had to be held 'on some subsequent date to be fixed by the Municipal Commissioner '. The affidavits on record clearly show that the Municipal Commissioner who presided over the meeting, was constrained to adjourn the meeting at 2.45 p.m. when some of the Councillors belonging to the Shiv Sena Party, of which the petitioner is the leader, went inside the booth and forcibly removed the ballot boxes and sat upon them to prevent casting of any votes, giving rise to commotion and pandemonium. What actually happened is best stated by the Municipal Commissioner in his affidavit: "As a result there was tremendous confusion, chaos and uproar in the house and there was tremendous noise and nothing could be heard clearly. I say that there was tremendous tension and the situation was going out of control and it was not possible to conduct the election at the moment of time and therefore I announced that the meeting is adjourned and that the Councillors should restore peace. I also said that I shall soon announce the time of meeting. I say that I did not leave the house and remained in the chair of the Presiding Authority hoping that the peace would be restored and I would be able to announce the time of the meeting. Thereafter Shri Man Mohan Singh 734 Oberoi raised the point of order that the meeting should not be adjourned and that he along with another Councillor Dr. Sancheti insisted that meeting should continue. At this stage the situation in the house worsened and in fact there was hot exchange of words and shouting between different groups of Councillors. An attempt was made to throw chairs at each other and in fact the furniture in the house was scattered and several Councillors surrounded me and some spoke in favour of adjournment and some spoke in favour of continuation. My efforts to restore peace and order were futile, and there was serious law and order situation. In the circumstances aforesaid there was no alternative and I felt that it was my duty to seek the Police help and I called the Police to restore order. Thereupon some of the Councillors objected and actually resisted the entry of the Police. Thereafter on my directives the Police soon left. Some of the Shiv Sena Councillors were in aggressive mood and they came to my table and violently thumped the table and shouted that they would not allow this meeting to take place. During this period I even suggested that the Councillors should go out. This was necessary as I felt that without that the furniture cannot be re arranged and further steps for resuming the meeting will not be possible. In the meantime the District Magistrate Shri R.R. Sinha and Supdt. of Police Shri T.C. Wankhede entered the Hall. S.P. Shri Wankhede appealed the Councillors on the mike to restore peace. I say that discussions took place between myself and the Dist. Magistrate with a view to restore the peace. The Dist. Magistrate Shri Sinha also appealed to restore peace. Thereafter the Councillors were calmed down and the order was restored. On the peace being restored both the District Magistrate and the S.P. left the house at 3.45 p.m. I announced on the mike that meeting would continue and election would be held at 4.30 p.m." ******* ******* ". in effect the adjournment declared by me as aforesaid amounts to suspension of the meeting because of the grave disorder . " ******* ******* 735 "I also said that I shall soon make an announcement about the time for resuming the meeting. " ******* ******* "I had to adjourn the proceedings in view of the prevailing circumstances set out hereinabove and since I felt that it was impossible to continue the election process in that situation. It was also necessary to enable myself to decide and announce the time for the resumption of the further proceedings of the meeting. " While setting out the facts we have already adverted to the facts sworn by the Collector and the Superintendent of Police. There is no reason not to act on these affidavits. The Collector says that 'there was total confusion and bedlam inside the hall ' apart from the fact that 'the entire atmosphere was surcharged with commotion ', and 'the Municipal Commissioner was in a very agitated state of mind and said that he could not hold the meeting in the unruly and disorderly situation prevailing '. There can be no doubt that such unruly scenes witnessed on that day gave rise to a serious law and order situation but both the Collector and the Superintendent of Police were able to restore order in the House and prevailed upon the outsiders to vacate the meeting hall in order that the proceedings could be resumed. The fact that the Municipal Commissioner did not leave the House or vacate the seat does lend support to the version that he had merely suspended the proceedings till order was restored. There is no reason to doubt the affidavit sworn by the Municipal Commissioner that he announced on the mike at 3.45 p.m. that the proceedings would be resumed at 4.30 p.m. for transacting the business for the day. It is quite obvious that the meeting was not 'adjourned for the day ' or 'adjourned sine die '. Shri Kacker, learned counsel for the petitioner contended that when the affidavits of the three officers showed that utter confusion prevailed and there was pandemonium all around with strangers moving about in the meeting hall, it must necessarily follow that no business could be transacted on that day. The contention is that the meeting was not adjourned to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '. He referred to the decisions in Menaka Bala Dasi and Sheokumar Shashtri, as also to various law dictionaries, besides a passage from Shackleton on the Law and Practice of Meetings, 7th edn. at p. 44. On the strength of these authorities, it was submitted that 736 the meeting was adjourned not to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '. He accordingly submitted that the Municipal Commissioner should have fixed another date for the meeting and issued fresh notice therefor. We are afraid, we cannot accept this line of reasoning. According to the ordinary meaning, the expression 'sine die ' as given in Shorter Oxford Dictionary, 3rd edn., vol. II at p. 2000 means: "Without any day being specified (for reassembling, resumption of business etc.); indefinitely." Similarly, in Webster 's Comprehensive Dictionary, International edn., the meaning given is more or less the same: "Without a day; indefinitely: an adjournment sine die (that is, without setting a day for ressembling). " The same is the legal meaning. In Black 's Law Dictionary, Deluxe 4th edn. at p. 1556, the meaning of the expression sine die is: "Without day; without assigning a day for a further meeting or hearing." The legal meaning given in Jowitt 's Dictionary of English Law, 2nd edn., vol. II at p. 1663 reads: "Without a day being fixed. The consideration of a matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption. " The passage in Shackleton at p. 44 on which the learned counsel relies reads: "Adjourned meetings: Notice. An adjournment, if bona fide, is only a continuation of the meeting and the notice that was given for the first meeting holds good for and includes all the other meetings following up it. If however the meeting is adjourned sine die, a fresh notice must be given. No new business can be introduced unless notice of such new business is given. " 737 There can be no dispute with the proposition but the difficulty is about the applicability of that principle to the facts of the case. Literally, there is nothing on record to substantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 p.m. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. without consideration of the agenda for the day. On the contrary, it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards. The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's Shiv Sena Party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them. There was a pre determined plan on their part not to allow the first meeting to be held on that day. But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day. In the prevailing situation, the Municipal Commissioner had no other alternative but to adjourn the meeting. Under the scheme of the Act, when the term of the elected Councillors is a period of five years which in terms of sub section (2) of section 6 of the Act is deemed to commence on the date of the first meeting, the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die. If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail, it would give rise to a serious anomaly. The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 6(2) of the Act for commencement of the term of the Councillors. The Municipal Commissioner has unequivocally asserted that he only suspended the proceedings in order that they could be resumed for transaction of the business for the day, and the business for the day had to be transacted on May 6, 1988, the date of the first meeting, as fixed by him. Admittedly, the Municipal Commissioner did not leave the meeting hall nor vacate his seat. He showed exemplary courage in not yielding to the threats of violence wielded by the party in opposition, because he knew that in law the first meeting had to be held on that day and could not be adjourned to another day. There is no reason to disbelieve the Municipal Commissioner that when he adjourned the meeting he simultaneously made an announcement that he would later announce the time when the meeting was to be resumed. He is candid enough to say that he had to adjourn the proceedings in view of the prevailing situation when he felt that it was impossible to continue the election process hoping that peace would soon be restored and he would be able to announce the time of the 738 meeting. One of the reasons given for the adjournment was that he adjourned the meeting to enable him to decide and announce the time for the resumption of the further proceedings of the meeting. Rankin, CJ in Menaka Bala Dasi 's case in repelling the contention that adjournment sine die of an application for making a decree in a mortgage suit final, was a discontinuance of it, observed: "(W)hatever may be the old authorities on that point, I have no doubt myself that with us to day 'adjournment sine die ' differs altogether from discontinuance. It is after all an adjournment an adjournment to a date that is not at the moment fixed. " The decision of the Madhya Pradesh High Court in Sheokumar Shasthri 's case relied upon by learned counsel for the petitioner is clearly distinguishable. In that case, it was admitted that the meeting of the Municipal Committee summoned for January 17, 1962 at which the motion of no confidence was to have been moved was adjourned sine die for want of quorum and the High Court held relying upon the proviso to section 32 of the Madhya Pradesh Municipalities Act, 1961, that a meeting convened for consideration of a no confidence motion could not be adjourned sine die, but had to be adjourned to 'some other day ' for which a fresh notice was necessary, P.V. Dixit, CJ speaking for himself and K.L. Pandey, J. observed: "It is settled law that where there is a power of adjournment and a meeting is adjourned, then the adjourned meeting is a continuation of the original meeting and no new notice of an adjourned meeting need be given unless the relevant statutory provisions or rules so require. But in the case of an adjournment sine die a fresh notice is necessary, (See: Scadding vs Lorant, ; ; and Wills vs Murray, ; The proviso to section 32 of the C.P. and Berar Municipalities Act, 1922, laid down that: "If at any ordinary or special meeting of the committee a quorum is not present, the Chairman shall adjourn the meeting to such other day as he may think fit . . " Under this proviso, a meeting could be adjouned to some fixed date and not sine die. " 739 The decision in Sheokumar Shashtri is therefore of no avail. Shackleton on the Law & Practice of Meetings, 7th edn. apart from the passage at p. 44 already quoted, gives the different shades of meaning of adjournment as understood in legal parlance, in the following words: "Adjournment is the act is postponing a meeting of any private or public body or any business until another time, or indefinitely, in which case it is an adjournment sine die. The word applies also to the period during which the meeting or business stands adjourned. An Adjournment may be: 1. For an interval expiring on the day of the adjournment. For an interval expiring on some later date. For an indefinite time (i.e. sine die). Until a fixed time and date. To another place. " The learned author then sets out the different causes giving rise to an adjournment which may be by (1) Resolution of the meeting. (2) Action of the chairman, and (3) Failure to achieve or maintain a quorum. A properly convened meeting cannot be postponed. The proper course to adopt is to hold the meeting as originally intended, and then and there adjourn it to a more suitable date. If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat. Even if the relevant rules do not give the chairman power to adjourn the meeting, he may do so in the event of disorder. Such an adjournment must be for no longer than the chairman considers necessary and the chairman must, so far as possible, communicate his decision to those present. The law relating to adjournment has been put succinctly in Horsley 's Meetings Procedure, Law and Practice, 2nd edn., edt. by W. John Taggart at p. 84, para 1002: 740 "The word 'adjournment ' tends to be used loosely in connection with meetings. Indeed, as a result, the word is possibly in process of acquiring a further, derived meaning of 'close, conclude or finish ', whereas a meeting or a debate is adjourned when its further proceedings are postponed to some subsequent time or to enable it to reassemble at some other place; to a later hour in the same day, to some future date, or indefinitely, i.e. sine die (without a day being named). The business (of the whole meeting or the debate respectively) is indeed suspended, but with an intention of deferring it until resumption at a later time. " The learned author goes on to say that the word 'adjourn ' has been in use for almost five centuries in connection with meetings, with an early meaning of 'to put off or defer proceedings to another day ', and adds: "This in due course gave rise to the added meaning 'to break off for later resumption '. " On an overall view of the facts and circumstances, we have no hesitation in upholding the finding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6, 1988 was not 'adjourned for the day ' or 'adjourned sine die ' but had only been put off to a later hour i.e. the proceedings had only been suspended, to re commence when peace and order were restored. In the result, the special leave petition must fail and is dismissed. No costs. G.N. Petition dismissed.

After the election of Members, the first meeting of the Aurangabad Municipal Corporation was held on May 6, 1983 at 2 P.M. and the Municipal Commissioner announced that the polling for the offices of Mayor, Deputy Mayor and Members of the standing Committee would commence from 2.30 p.m. onwards. But at 2.30 P.M. some of the Councillors belonging to the Opposition Party sat on the ballot boxes and some others surrounded the Municipal Commissioner and demanded that the meeting be adjourned to a subsequent date. The Councillors belonging to the ruling party demanded that the meeting and election be held later on that day. Total confusion and bedlam prevailed and the rival groups started throwing Chairs at each other, leading to a pandemonium. It was a free for all, and even outsiders were present. When the situation was brought under control, the Municipal Commissioner announced that the meeting would continue and the elections would be held at 4.30 p.m. The petitioner filed a protest at 4.15 p.m. stating that the meeting had been adjourned by the Municipal Commissioner for the day and, therefore, the holding of the meeting later on the same day would be improper and illegal. Thereafter, the opposition group abstained from participating in the meeting held at 4.30 p.m., in which Respondents 1 and 2 were declared elected as Mayor and Deputy Mayor respectively 726 and Respondents 3 8 as Members of the Standing Committee. In a Writ Petition filed before the High Court, the appellant questioned the election, on the basis that the meeting in which the election was held, was invalid. The High Court held that the meeting was not adjourned for the day or sine die, but was only postponed, to be held as soon as peace was restored on the very day and upheld the election of Respondents 1 to 8. Against the judgment of the High Court, the petitioner has filed the present special leave petition. On behalf of the petitioner, it was contended that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die. The contention of the Respondents was that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting held at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given. It was also contended that there was no warrant for interference under article 136 of the Constitution since a finding of fact had been reached by the High Court on consideration of the material on record. Dismissing the petition, ^ HELD: 1. A properly convened meeting cannot be postponed. The proper course to adopt is to hold the meeting as originally intended, and then and there adjourn it to a more suitable date. If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat. Even if the relevant rules do not give the chairman power to adjourn the meeting, he may do so in the event of disorder. Such an adjournment must be for no longer than the chairman considers necessary and the chairman must, so far as possible, communicate his decision to those present. [739F G] 2.1 In the instant case, the High Court was right in holding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6, 1988 was not 'adjourned for the day ' or 'adjourned sine die ' but had only been put off to a later hour i.e. the proceedings had only been suspended, to re commence when peace and order were restored. [740D E] 727 2.2 There is nothing on record to sustantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 P.M. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. without consideration of the agenda for the day. On the contrary, it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards. The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them. There was a pre determined plan on their part not to allow the first meeting to be held on that day. But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day. In the prevailing situation, the Municipal Commissioner had no other alternative but to adjourn the meeting. Under the scheme of the Act, when the term of the elected Councillors is a period of five years which in terms of sub section (2) of section 6 of the Act is deemed to commence on the date of the first meeting, the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die. If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail, it would give rise to a serious anomaly. The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 6(2) of the Act for commencement of the term of the Councillors. The fact that the Municipal Commissioner did not leave the House or vacate the seat lends support to the version that he had merely suspended the proceedings till order was restored. [737A E] Smt. Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR 1964 MP 195 Distinguished. Shackelton on the Law & Practice of Meeting, 7th Edn. p. 44, Horsley 's Meetings Procedure, Law and Practice, 2nd Edition, p. 84, para 1002 referred to.

Appeal No. 1164 of 1966. 66 Appeal by special leave from the judgment and order dated September 27, 1965 of the Kerala High Court ' in O.P. No. 688 of 1965. D. Narsaraju, S.A.L. Narayana Rao, R.N. Sachthey and B.D. Sharma, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Grover, J. The short but important question which is involved in this appeal 'by special leave from a judgment of the Kerala High Court is whether the Appellate Income tax Tribunal has the power, under the relevant provisions of the Income tax Act, 1961, (hereinafter called the Act) to stay the recovery of the realization of the penalty imposed by the departmental authorities on an assessee during the pendency of an appeal before it. The assessee, who is the respondent, was imposed penalties in the sum of Rs. 18,000/ , 1,700/ and 14,000/ respectively in respect of the assessment years 1954 55, 1960 61 and 1961 62. These penalties were imposed .under section 271(1)(c) read with section 274(2) of the Act for concealment of particular income and furnishing inaccurate particulars. The assessee preferred appeals to the Income tax Appellate Tribunal and made an interim prayer for stay of collection of the penalties imposed. The Tribunal declined to order any stay holding that it had no power to grant such a prayer. The assessee then moved the High Court under article 226 of the Constitution. The High Court held that the Tribunal had the power to stay the proceedings as also the collection of the penalties pending the appeal since that power was incidental and ancillary to its appellate jurisdiction. The Tribunal was consequently directed to dispose of the stay application in accordance with law. The relevant provisions. of the Act may be first noticed. Section 156 provides that when any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under the Act, the Income tax Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable. Under section 220( 1 ) any amount specified in the notice of demand under section 156 has to be paid within 35 days of the service of the notice or within such lesser period as may be specified under the proviso to sub section If the amount is not paid within the period limited or extended (the assessee can ask for an extension) the assessee shall be deemed to be in default. Sub section (6) of section 220 provides that where an assessee has presented an appeal under section 246 the Income tax Officer may, in his discretion and subject to such conditions as he may think fit, treat the assessee as not being in default so long as the appeal .remains pending. 67 Section 221 provides for the imposition of penalty when the assessee is in default. Sections 222 to 224 relate to the issuance of a certificate to the Tax Recovery Officer. Under section 225 the Income tax Officer can order stay of proceedings, even after the certificate has been issued to the Tax Recovery Officer. It may be mentioned that the last four sections in terms relate to recovery of tax, but by virtue of section 229 any penalty imposed is also recoverable in the same manner. Section 246 to which reference has been made in section 220(6) gives the appealable orders against which an assessee may appeal to the Appellate Assistant Commissioner. Appeals to the Tribunal are dealt with by sections 252 to 255. Section 252 provides merely for constitution of the Tribunal. Section 253 says that any assessee aggrieved by the orders set out in cls. (a), (b) and (c) of sub section (1) may appeal to the Tribunal. The Commissioner is also entitled to direct the Income tax Officer to file an appeal against the order of an Appellate Assistant Commissioner made under section 250. Section 254 specifies the orders which the Tribunal can make. Sub section (1 ) which is material may be reproduced below : "254. Orders of Appellate Tribunal. ( 1 ) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. " Section 255 gives the procedure of the Appellate Tribunal. Subsections (5) and (6) of this section need alone be noticed. "255 (1) . . . . . (2) (3) (4) (5) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings. (6) The Appellate Tribunal shaH, for the purpose of discharging its functions, have all the powers which are vested in the Income tax authorities referred to in section 131, and any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 68 228 and for the purpose of section 196 of the Indian Penal Code (XLV of 1860) and the Appellate Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898). " Section 131 may at this stage be referred to. It gives to the Income tax Officer, the Appellate Assistant Commissioner and the Commissioner the same powers as are vested in the court under the Code of Civil Procedure when trying a suit in respect of the matters specified in the section. But these powers relate to discovery and inspection; enforcing the attendance of witnesses; compelling production of books of account etc.; issuing commissions and allied matters. There can be no manner of doubt that by the provisions of the Act or the Income tax Appellate Tribunal Rules, 1963 powers have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from an assessee. At the same time it is significant that under section 220 (6) the power of stay by treating the assessee as not being in default during the pendency of an appeal has been given to the Income tax Officer only when an appeal has been presented under section 246 .which will be to the Appellate Assistant Commissioner and not to the Appellate Tribunal. There is no provision in section 220 under which the Income tax Officer or any of his superior departmental officers can be moved for granting stay in the recovery of penalty or tax. It may be that under section 225 notwithstanding that a certificate has been issued to the Tax Recovery Officer for the recovery of any tax (the position will be the same with regard to penalty) the Income tax Officer may grant time for the payment of the tax. In this manner he can probably keep on granting extensions until the disposal of the appeal by the Tribunal. It may also be that as a matter of practice prevailing in the department the Commissioner or the Inspecting Assistant Commissioner in exercise of administrative powers can give the necessary relief of staying recovery to the assessee but that can hardly be put at par with a statutory power as is contained in section 220(6) which is confined only to the stage of pendency of an appeal before the Appellate Assistant Commissioner. The argument advanced on behalf of the appellant before us that in the absence of any express provisions in sections 254 and 255 of the Act relating to stay of recovery during the pendency of an appeal it must be held that no such power can be exercised by the Tribunal, suffers from a fundamental infirmity inasmuch as it assumes and proceeds on the premise that the statute confers such a power on the Income tax Officer who can give the necessary 69 relief to an assessee. The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the Appellate Tribunal. Indeed the Tribunal has been given very wide powers under section 254(1) for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal. If the Income tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay or recovery the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside. It is difficult to conceive that the Legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion. The assessee, as has been pointed out before, has no right to even move an application when an appeal is pending before the Appellate Tribunal under section 220 (6 ) and it is only at the earlier stage of appeal before the Appellate Assistant Commissioner that the statute provides for such a matter being dealt with by the Income tax Officer. It is a firmly established rule that an express grant of statutory. power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, articles 5401 and 5402). The powers which have been conferred by section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers, fully effective. In Domat 's Civil Law Cushing 's Edition, Vol. 1 at page 88, it has been stated: "It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it." Maxwell on Interpretation of Statutes, Eleventh Edition, contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdiction data est, ea quoque concessa esse videntur, sine quibus jurisdiction explicari non potuit. " An instance is given based on exhibit parte Martin(x) that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be useless if it could not be enforced." (1) , 491. 70 The High Court in the present case has referred to certain decisions under the Motor Vehicles Act in which the question arose whether an interim order of stay could be passed although section 64(2) of the Motor Vehicles Act as amended did not expressly confer a power on the authority to pass such an order. It was held in those cases that the power to stay was a necessary corollary to the power to entertain an appeal or revision: Swarnambikar Motor Service vs Wahite Motor Service(D; Themmalpuram Bus Transport Ltd. vs The Regional Transport Officer, Malabar(2). The full bench decision in Dharmadas vs State Transport Appellate Tribunal(3) related to the question whether a remand could be ordered in exercise of appellate jurisdiction under section 64 of the Motor Vehicles Act in the absence of any express power to that effect existing in the statute. It was held that the power to remand was incidental to and implicit in the appellate jurisdiction created by section 64. According to the decision in the Burhanpur Tapti Mill Ltd. vs The Board of Revenue, Madhya Pradesh & Ors. (4), since the Board of Revenue had the power to adjudge the correctness of an order passed by the Commissioner under section 22B reopening an assessment the Board had also the power to stay the fresh assessment proceedings started by the Assistant Commissioner in pursuance of that order. It was said that the general principle was that in a taxing statute there was no room for what could be called the equitable construction, but that principle applied only to the taxing part of the statute and not to the procedural part. It has further been observed that "where the legislature invests an Appellate Tribunal with powers to prevent an injustice, it impliedly empowers it to stay the proceedings which may result in causing further mischief. " It is well known that an Income tax Appellate Tribunal is not a court but it exercises judicial powers. The Tribunal 's powers in dealing with appeals are of the widest amplitude and have in some cases been held similar to and identical with the powers of an appellate court under the Civil Procedure Code. (See Commissioner of Income tax, Bombay City vs Hazarimal Nagji & Co.(5) and New India Assurance Co. Ltd. vs Commissioner of Income tax, Excess Profits, Bombay City(6). In Polini vs Grey(7), this is what Jessel M.R. said about the powers of the Court of Appeal to. grant stay at page 443: "It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party, is to Shortnotes (1956) 2M.L.J. 12. (2) A.I.R. 1957 Kerala. (3) [1962] Kerala L.J. 1133. (4) (1955) 6 S.T.C. 670. (5)46 I.T.R. 1168. (6) 31 I.T.R. 844. (7) 71 reap the fruits of that litigation, and not obtain merely a barren success. That principle, as it appears to me, applies as much to the Court of first instance before the first trial, and to the Court of Appeal before the second trial, as to. the Court of last instance before the hearing of the final appeal". There are certain decisions, however, in which difficulty was felt that the Appellate Tribunal did not possess the power to stay recovery during the pendency of an appeal. In Vetcha Sreeramamurthy vs The Income tax Officer Vizianagram & Another(1), the assessee had to file a writ petition because the realisation of the tax assessed had not been stayed during the pendency of an appeal before the Tribunal. The controversy centred in that case mainly on the scope of the discretionary power conferred by section 45 of the Indian Income tax Act, 1922, on the Income tax Officer. It was held that a writ petition to compel the Income tax Officer to exercise his discretion under section 45 or to exercise it honestly and, objectively was not barred. But on the merits the Court declined issue a writ. Viswanatha Sastri J., in his separate judgment made the following observations at page 271: "Lastly it has to 'be observed that section 45 of the Income tax Act is somewhat cryptic in its terms and merely gives the Income tax Officer power to declare a person to be not in default pending the appeal. There is no provision for stay similar to Order XLI, Rules 5 & 6, of the Civil Procedure Code. There is no conferment of an express power of granting a stay of realisation of the tax, though the effect of an order in favour of the assessee under section 45 of the Act is a stay. Nor is there a provision for allowing the tax to be paid in instalments or for taking security for deferred payment. Neither the Appellate Assistant Commissioner nor the Appellate Tribunal is given the power to stay the collection of tax. Whether the law should not be made more, liberal so as to enable an assessee who has preferred an appeal, to obtain from the appellate forum, a stay of collection of the tax, either in whole or in part, on furnishing suitable security, is a matter for the legislature to consider. " It is interesting that in another case Pollisetti Narayana Rao vs Commissioner of Income tax, Hyderabad(2), the same High Court held that stay could be granted by it pending reference of a case by the Appellate Tribunal to the High Court. This power the High Court had under section 151 of the Civil Procedure Code and under article 227 of the Constitution. (1) (2) 72 The High Court, in the present case, referred to a passage from Halsbury 's Laws of England, 3rd Edition, Vol. 20, p. 705 where it is stated that "no tax is payable while the assessment is the subject matter of an appeal except such part of the tax assessed as appears to the Commissioners seized of the appeal not to be in dispute. " This statement is apparently based on the provisions of the English Statutes and it is not possible to derive any assistance from it. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an .appeal is pending before the Appellate Tribunal. It could well be said that when section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings as will prevent the appeal if successful from being rendered nugatory. A certain apprehension may legitimately arise in the minds of the authorities administering the Act that if the Appellate Tribunals proceed to stay recovery of taxes or penalties payable by or imposed on the assessees as a matter of course the revenue will be put to great loss because of the inordinate delay in the disposal of appeals by the Appellate Tribunals. It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue. It wilt only be when ' a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal. For all the reasons given above, the appeal fails and it is hereby dismissed. But in view of the entire circumstances the parties are left to bear their own costs. V.P.S. Appeal dismissed.

Certain amounts were imposed as penalty upon the assessee (respondent) under sections 271(1)(c) and 274(2) of the Income tax Act, 1961, for concealment of particulars of income and for furnishing inaccurate particulars. The assessee preferred appeals before the Appellate Tribunal and prayed for stay of recovery of the penalties pending disposal of the appeals, but the Tribunal declined to stay on the ground that it had no power to do so. The assessee moved the High. Court under article 226 and the High Court held that the Tribunal had the power to stay and directed the Tribunal to dispose of the stay application in accordance with law. In appeal to this Court, HELD: The Tribunal has the power to order the stay of recovery of the penalty as an incidental and ancillary power to its appellate jurisdiction. [72 C] Under section 220(6) the Income tax Officer has a power not to treat an assessee as being in default, when an appeal under section 246 before the Appellate Assistant Commissioner is pending. But neither the Income tax Officer nor any other departmental officer has the power to stay the recovery of penalty when an appeal is pending before the Tribunal. The Act is silent in that behalf, and there is no provision in the Act or the Income tax Appellate Tribunal Rules, 1963, granting expressly such a power to the Tribunal. That is because, the Tribunal, though not a court, exercises in its appellate jurisdiction under section 254 judicial powers of an appellate court of the widest possible amplitude 'and such a statutory power impliedly grants the power of doing all such acts, or employing such means as are essentially necessary to the execution of such jurisdiction and carries with. it the power to stay proceedings in proper cases. In view of the special nature of taxation 'and revenue laws. such power can be exercised after imposing conditions for safeguarding the revenue only in deserving and appropriate cases where the appeal will be otherwise frustrated or rendered nugatory. The general principle that in a taxing statute there is no room for what could be called equitable construction applies only to the taxing part of the statute and not to its procedural part. [68 C E; 69 E; 70 D E; 72 F G] Burhanpur Tapti Mills Ltd. vs Board of Revenue, Madhya Pradesh, (1955) 6 S.T.C. 670, referred to. Observations in Vatcha Sreeramamurthy vs I.T.O. Vizianagaram, at p. 271, disapproved.

Appeal No. 613/ 1963. Appeal by special leave from the judgment dated December 12, 1960, of the Punjab High Court in Income tax Reference No. 2 of 1958. section K. Kapur, K. K. Jain, Bishambar Lal Khanna and section Murthy, for the appellant. C.K. Daphtary, Attorney General, R. Ganapathy Iyer and R.N. Sachthey, for the respondent. 627 April 2, 1964. The Judgment of the Court was delivered by SIKRI, J. The appellant is a Joint Stock Company, here inafter referred to as the assessee, having its registered office in Delhi. It held 11950 'B ' Preference shares in another company, called Rohtas Industries Ltd., in the previous year (calendar year ending December 31, 1953). The latter company paid a sum of Rs. 50,787/ as dividend on the said Preference Shares to the assessee, and for the assessment year 1954 55 this sum was taxed in the hands of the assessee as dividend, within section 2(6A) of the Indian Income Tax Act, 1922, by the Income Tax Officer. The Appellate Assistant Commissioner, on appeal by the assessee, held it not to be taxable. The Income Tax Appellate Tribunal, on an appeal by the Department, however, agreed with the Income Tax Officer and allowed the appeal. On the application of the assessee, the Appellate Tribunal stated a case for the opinion of the Punjab High Court. The High Court upheld the contention of the Department and answered the question referred to it against the assessee. The assessee, after failing to get a certificate under section 66A(2) of the Income Tax Act, obtained special leave from this Court and now the appeal is before us for disposal. The question referred to the High Court is as follows: "Whether on the facts and in the circumstances of the case, the receipt of Rs. 50,787/ was a receipt of dividend and is taxable under the Indian Income Tax Act. " The facts and circumstances referred to in the question are as follows. Rohtas Industries Ltd., hereinafter referred to, as the declaring company, had in the year 1946 issued shares at a premium and the share premiums so received by it were kept separate under the head 'Capital Reserve '. The declaring company declared a dividend in the previous year of the assessee out of the above capital reserve. The learned counsel for the assessee contends before us that the sum received by the assessee is not dividend within the definition of the word in section 2(6A) of the Income Tax Act. He says that the share premiums were not profits capable of being distributed as profits within Regulation 97 of Table A Of Companies Act of 1913 which lays down that "no dividend shall be paid otherwise than out of the profits of the year or any other undistributed profits. " He argues further that it was a capital gain in the hands of the declaring company and capital gains are expressly excluded from the definition of 'dividend ' by the explanation to section 2(6A) which provides that 'the 628 expression "accumulated profits" wherever it occurs in this clause shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948 '. Lastly, he urges that in any event, section 78 of the , has placed this sum beyond the reach of the Revenue. Before adverting to the arguments addressed to us, it is necessary to reproduce the relevant statutory provisions. Section 2(6A) of the Income Tax Act defines 'dividend ' as follows: (6A) 'dividend ' includes (a) any distribution by a company of accumulated profits, whether capitalised or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company; (b). . . (c). . . Provided that (d). . . Provided that Provided further that the expression "accumulated profits", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948. " Section 78, of the , reads: "78. (1) Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called "the share premium account"; and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid up share capital of the company. (2) The share premium account may, notwithstanding anything in sub section (1), be applied by the company (a) in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares; (b) in writing off the preliminary expenses of the company; 629 (c) in writing off the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company; or (d) in providing for the premium payable on the redemption of any redeemable preference shares or of any debentures of the company (3) Where a company has, before the commencement of this Act, issued any shares at a premium, this section shall apply as if the shares had been issued after the commencement of this Act: Provided that any part of the premiums which has been so applied that it does not at the commencement of this Act from an identifiable part of the company 's reserves within the meaning of Schedule VI, shall be disregarded in determining the sum to be included in the share premium account. " It is evident from the definition of the word 'dividend ' that if a distribution of accumulated profits, whether capitalised or not, entails the release by the company to its shareholder of all or any part of its assets, it is dividend. It is not disputed that the distribution of Rs. 50,787/ entails the release of the assets of the declaring company. But it is contended that there was no distribution of accumulated profits, because by virtue of Regulation 97, Table A of the Companies Act, 1913, no dividend could be paid otherwise than out of the profits of the year or any other undistributed profits. It is said that the premiums received by the declaring company were not profits within Regulation 97. We are unable to accede to this contention. Previous to the enactment of section 78 of the Companies Act of 1956, and the corresponding section in the English Companies Act, it was recognised that a company ,could distribute premiums received on the issue of shares as dividends (vide Palmer 's Company Law, Twentieth Edition). At page 637, it is stated: legally permissible for the company to distribute dividend out of assets which do not represent profits made as the result of its trading or business. The connotation of divisible profits, or profits in the legal sense, is much wider than that of profits in the business sense: the former term includes, e.g., reserves accumulated from past profits, from realised capital profits indeed, before the requirement of a share premium account by the 1947 48 legislation, from premiums obtained on issue of 630 new shares, whereas none of these items is regarded and rightly so by the businessman or accountant as trading profits." Palmer relies on two cases: Re Hoare & Co. Ltd.,(1) and Drown vs Caumin British Picture Corporation(2). In Re Hoare 's (1) case the company had created a reserve fund con sisting partly of premiums received on the issue of preference: shares. It having incurred a loss arising from the depreciation in the value of the public houses below the amount stated in the company 's balance sheet, applied for sanction of the Court to a scheme for reduction of capital whereby the company, while retaining a small portion of the reserve, attributed to, the reserve more than its rateable proportion and to capital account less than that of its rateable proportion Buckley J. apparently held that these premiums were not 'profits ' in the strict sense; and, on appeal, the counsel for the company contended before the Court of Appeal that this was wrong. Romer, L.J., disposed of this contention in the following words"; "The surplus which was carried to the reserve fund represented that which might have been properly applied at the time, if the company had so thought fit, in paying further dividends to shareholders and no person could have complained if they had done so" Thus, Romer, L.J., thought that there was nothing objec tionable in utilising premiums received on the issue of shares for the purpose of declaring dividend. in Drown 's case(2), a company proposed to pay a dividend on its preference shares and utilise in part premiums received by the company on the issue of shares, which had in fact been invested in the assets of the company. The plaintiff asked for an injunction to restrain the company from paying the dividend. Clauson, J., held that part of a reserve fund consisting of moneys paid by way of premiums on shares, unless set aside in some particular fund which has been wholly spent, is available for dividend purposes. We are not concerned with other points that arose in the case and we have only set out the facts and findings relevant to the question before us. We may here set out Article 129 of the Gauniont British Picture Corporation Ltd. Article 129 reads thus: "The Directors may, with the sanction of a general meeting, from time to time declare dividends or bonuses, but no such dividend shall (except as by (2)[1937] Ch. 631 the statutes expressly authorised) be payable otherwise than out of the profits of the company. . . " . Mr. Kapur, learned counsel for the appellant, had contended that the English Law was different inasmuch as what was prohibited in English Law was payment of dividends out of capital and that it did not enjoin directors to pay dividends out of profits. This case refutes Mr. Kapur 's contention. In re Duff 's Settlements, National Provincial Bank Ltd., vs Gregson,(1) which is strongly relied on behalf of the appellant, and which we will advert to in detail later, Jenkins, L.J., says at p. 926: "The share premiums would have been profits available for distribution (see Drown vs Gamnont British Picture Corporation) " (2). It was thus well established before the Act of 1956 and the corresponding English Act that premiums received on the issue of shares were profits available for distribution. We are of the opinion that the same connotation should be attached to the word 'Profits ' in Regulation 97 of Table A. In this view of the matter, it is not necessary to pronounce on the question whether even if these premiums were not profits within Regulation 97, would this necessarily exclude them from coming with the words 'accumulated profits ' within section 2(6A)(a). This takes up to the next point raised before us: Are the premiums received on the issue of shares capital gains within the explanation to section 2(6A)? This point was not urged before the High Court or the Appellate Tribunal and we did not allow it to be developed. The last point may now be dealt with. In this connection it is necessary to appreciate the scheme of section 78 of the Com panies Act, 1956. Sub section (1) enjoins a company, when it issues shares at a premium, to transfer the premiums to an account called 'the Share Premium Account ' and it then applies the provisions of the Act relating to the reduction of the share capital of a company as if the share premium account were paid up capital of the company. Sub section (2) then provides how the share premium account may be applied. It is said that it impliedly provides that it cannot be used for the purpose of paying dividends. Sub section (3) then deals with the issue of shares at a premium before the commencement of this Act. It deems them to have been issued after the commencement of the Act and applies the provisions of section 78. The effect of this would be that company which has issued shares at a premium before the commencement of the Act would by (1) (2) 632 virtue of section 78, have to open a share premium account and transfer to it the premium so received. What is to happen if before the commencement of the Act the company has already dealt with the premiums in such a way that they had ceased to remain as an identifiable part of the company 's reserves? The sub section says that in that event the premiums so dealt with shall be disregarded in determining the sum to be included in the share premium account. If such premiums are to be disregarded for the creation of the share premium account, it means that they fall outside the purview of section 78. It has no application to them. If this is so, it is difficult to appreciate bow the appellant can utilise this section for the purpose of showing that the premiums which have already been distributed became invested with the character of capital in the bands of the distributing company. We do not say that for the purpose of income tax any future application of the share premium ac count in one of the ways mentioned in sub section (2) will be treated as distribution of capital. No such question arises for our determination in this case. But we do hold that section 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from section 78; it remains so taxable. The case of Duff 's Settlements(1) referred to above, on which the learned counsel strongly relied, might or might not help him if the declaration of dividend had taken place after the Act of 1956. We are of the opinion that what was decided in this case has no relevance to the facts of this appeal. Before concluding, we may refer to the decision of the House of Lords in Land Revenue Commissioners vs Reids Trustees(2), relied on by the learned counsel for the respondents. This case would be relevant if we were considering generally whether the receipt of Rs. 50,787/ was income or capital in the hands of the assessee. The question, however, referred to the High Court is limited, and that is whether the receipt of Rs. 50,787/ was a receipt of dividend and taxable. It is, therefore, unnecessary to say more about this case. In the result, we agree with the High Court that the answer to question referred to it is in the affirmative. The appeal fails and is dismissed with cost. Appeal dismissed. (1)[1951] 1 Ch.

The Rohtas Industries Ltd. issued in 1945 shares at a pre mium and the share premiums so received were, kept separate under the head Capital Reserve. In the calendar year ending December 31, 1953, the company paid a sum of Rs. 50,787/ as dividend to the appellant company. For the year 1954 55, this sum was taxed in the hands of appellant as dividend by the Income tax Officer. The Appellate Assistant Commissioner set aside the order of the Income tax Officer, but the same was restored by the Income tax Appellate Tribunal. The Tribunal referred to the Punjab High Court the question whether on "he facts and in the circumstances of the case, the receipt of Rs. 50,787/ was a receipt of dividend and was taxable under the Indian Income tax Act. The High Court answered the question against the appellant and the latter appealed this Court with special leave. Dismissing the appeal. Held: The receipt of Rs. 50,787/ was a receipt of dividend :and was taxable under the Indian Income tax Act, 1922. It was well established before the , that premiums received on the issue of shares were profits available for distribution and the word "profits" in Regulation 97 of Table A of Companies Act 1913 should be understood to include share premiums also. section 78 of the Companies Act does not in any way change the taxability of dividends declared out of premiums on shares received by a Company before the Act of 1956 came into force. If it was taxable, apart from section 78, it remains so taxable. Re Hoare & Co. Ltd., ; Drown vs Gaumint British Picture Corporation, ; re Duff 's Settlements. National Provincial Bank Ltd., vs Gregson, ; Land Revenue Commissioners vs Reids Trustees, , referred to.

Appeal No. 2854 of 1993. From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990. S.D. Bajaj, and P. Mahale for the Appellants. Ms. Kiran Suri for the Respondent. The Judgment of the Court was delivered by VENKATACHALA, J. We grant Special Leave. Since we heard learned counsel for parties on the merits of the appeal. we are finally deciding it. An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District. They are the disputed lands in this appeal. The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act. Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant 1 and father of appellant 2, for their personal cultivation. With the coming into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, known s the Watan (Abolition) Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans. But, there was a right conferred under the Watan Act on every Watandar the holder of the 782 Watan land, to obtain its regrant subject to payment of occupancy price. After the resumption of the disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner. Savannah, as by then, Dharwad District where the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of States under the . Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands (resumed Watan lands) in favour of their former Watandar, Basappa Bheemappa. The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 (the BT & Al, Act) from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant 1 and father of appellant 2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan (Abolition) Act, did not entitle him to obtain possession of them except under the BT & AL, Act. Although, the Karnataka Land Reforms Act, 1961 (the KLR Act) which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan (Abolition) Act and by its section 143 the BT & A L Act, 1948, nothing thereunder adversely affected the rights of the appellants ' tenancy in the disputed lands. However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants (the appellant 1 and father of appellant 2 on 3 1st March, 1969 under a registered sale deed. The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord regrade, Basappa Bheemappa. But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa (the seller of the disputed lands) and two other brothers arraying them as defendants 1 to 3. That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share. His claim for partition and separate possession of `his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant 1, his eldest brother, had sold the disputed lands (joint family lands) in favour of the tenants, without the prior consent of his brothers and for no legal necessity of the family, was void ab initio. The impleaded in that suit appellants 1 and 2 as defendants 4 and 5, since they were in possession of the disputed lands. Defendants 1, 4 and 5, resisted the plaintiff 's claim for 783 partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had no right to get any share in them. After trial of the suit, the Munsiff Court ranted a decree in favour of the respondent. That decree of the Munsiff Court was based on its findings (i) that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3; (ii) that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers, the plaintiff and defendants 2 and 3 and without legal necessity of the family, the same was void ab initio; (iii) that the plea of defendants 1, 4 and 5 that the tenancy revived, if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be vs ' d, was unacceptable ', and (iv) that the sale by defendant ] in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them (Fragments) was prohibited under the provision. 1 of the Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act, 1966 the Karnataka Prevention of Fragmentation Act. However, defendants 4 and 5 challenged the correctness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli. In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands. Accordingly, it dismissed the appeal. A Regular Second Appeal filed by defendants 4and 5 before the High Court of Karnataka against the decree of the Civil Judge 's Court affirming the decree of the Munsiff 's Court, was dismissed in limine. It is those decrees which are impugnned by defendants 4 and 5 in the present appeal by Special Leave. Shri Padmanabha Mahale, the learned counsel for the appellants, contended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant 1 in favour of defendants 4 and 5 (appellants 1 and 2) was ab initio void either (i) because the sale was of the joint family lands effected by the eldest brother in the family without the consent of the other brothers and for no legal necessity, or (ii) because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Had it been so held, it was argued, there would not have been scope for the 784 Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court. On the other hand, Mrs, Kiran Surj, the learned counsel for the respondent, submitted that the tenancy or lease hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant 1 on 31st March, 1969. That sale, when was found to be void by the Courts below, such finding did not have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands. This appeal was, therefore, liable to be dismissed. The Court of Munsiff the Trial Court and the Court of Civil Judge the First Appellant Court, have recorded a concurrent finding that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants 2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant 1 without their consent and when there was no legal necessity of the family for such sale. The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them. The Second Appeal filed before the High Court by defendants 4 and 5, has been dismissed in limine. That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the consequence contained in sub section (3) of section 39 of that Act should have followed, that is "Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to 785 be in the possession of the person lawfully entitled to such possession". In the instant case, the tenants on the lands (defendants 4 and 5) being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff (respondent here) could have been ranted in respect of such tenanted lands, only if the same was permissible in law, and not otherwise. The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant 1 could not have sold the undivided interest of his brothers the plaintiff (respondent here) and defendants 2 and 3 in the disputed lands, being their joint family properties, without their consent and without the legal necessity of the family. If that be so, defendant 1 had to be regarded as having sold in favour of defendant 4 and father of defendant 5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and not. 3/4th of the undivided interest of the plaintiff and defendants 2 and 3. That means that the lessors ' entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969. From this, it following that the lease hold interests of defendant 4 and father of defendant 5 in the disputed lands and lessors ' entire reversion could not have merged in one and some person. so as to constitute merger envisaged under section 111 (d) of the , in that, for constituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property. had to vest at the same time in one person in the same right. Thus, on the basis of the finding of the Courts below, if it has to be held that defendant 1 had not sold the undivided interest of the plaintiff and defendants 2 and 3 in the disputed lands to the extent of their 3/4th share there could not have been any merger of tenancy rights of defendant 4 and father of defendant 5 in the disputed lands with that of lessors (landlords) whole rights. If so, tenancy rights of the appellants in the disputed lands ought to be regarded as not affected or disturbed by the sale deed of 31st March, 1969. Hence, consideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad 786 District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had continued as tenanted lands, as found by us. No costs. U.R. Appeal allowed.

Basappa Bheemappa K,as the Watandar of the disputed agricultural lands admeasuring 4 acres, and 6 acres 26 guntts, in Kubihal Village in Kundgol Taluk of Dhwarwad District which became a part of Karnataka State in 1956. In 1950, he leased the disputed lands to appellant 1 and the father of appellant 2 for their personal cultivation. With the coming into force of the Bombay paragana and Kulkarni Watans(Abolition) Act 1950 the lands were resumed by the State of Bombay, Bheemappa applied under this Act for regrant of the wattan land, and the Dy. Commissioner of Dhawad District made the regrant in his favour on 30.11.1968. On 31.3.1969, he sold the land to appellant No. 1 and the father of appellant No. 2 under a registered sale deed. The land tribunal under the Karnataka land Reforms Act 1961 found it unnecessary to register the occupancy rights (of the appellants in view of the sale. In 1976, respondent field a suit against Bheemappa and 2 other brothers for partition to the disputed property and separate possession. He impleadcd appellants 1 and 2 as defendant,; in the suit since they were in possession of the disputed lands. He contended that Bheemappa had sold the lands without the prior consent of his brothers, and for nor legal necessity. of the family, and the sale was void ab initio. 780 The Munsiff Court granted a decree in favour of the respondent on its finding that the disputed funds were Hindu joint family properties, that the sale *%,as void ab initio for tile reasons stated . and that the plea (if the defendants appellants that if the sale was void the tenancy revived. ",as unacceptable. The Munsiff Court, and in appeal, the Civil Judge concurrently held that the sale was void since sale (it ' fragments was prohibited under the Karnataka prevention of Fragmentation Act 1966. A regular second appeal before the High Court was dismissed in limine. The appellants contended before this Court that if the sale was ab initio void, the agricultural tenancy (of the appellant%; revived. For the respondents it was submitted that the tenancy on lease hold rights in the disputed lands held by the appellant got merged in tile sale effected in their favour. When that sale was found to be void it did not have the effect (if reviving the merged tenancy of the appellants,as would restore their tenancy right,; in the disputed lands. Allowing the appeal, this Court, HELD: (1) Tile tenants being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof a partition decree could have been granted, in respect of such tenanted lands only if permissible by law. (784 H) (2) The courts below having found that the sale deed was void because Bheemappa could not having sold the undivided interest of his brother, only his 1/4 undivided interest, in the disputed lands had to be regarded as having been sold by him. (784 H) The lessors ' entire interest (or entire reversion in the disputed lands cannot therefore be regarded us having been sold under the sale deed of 31 st March, 1969. From this, it follows that the lease hold interests of the leases and the lessors entire reversion could not have merged in one and the same person, so as to constitute merger envisaged under section 111(d) of the Transfer of Property. Act, 1982. For constituting merger under that procession, the interests of the lessee and the interests of the lessor in the whole of the 781 property had to vest at the same time in one person in the same right. (785 BC) The tenancy rights of the appellants in the disputed lands was not affected or disturbed by the sale deed of 31st March, 1969, and it is unnecessary to consider the question of revival of the right of tenancy of the appellants in the disputed lands. (785 D) 3. Case remitted to the Court of Munsiff at Kundgol Dharwad District to decide the claim for partition if the disputed lands had continued as tenanted lands, as found by this Court. (785 E)

Appeal No. 230 of 1955. Appeal from the judgment and order dated October 5, 1953, of the Patna High Court in M. J. C. No. 128 of 1953. Mahabir Prasad, Advocate General for the State of Bihar and R. C. Prasad, for the appellants. N. C. Chatterjee and P. K. Chatterjee, for the respondent. April 15. The Judgment of the Court was delivered by section K. DAS, J. This appeal relates to a trust known as the Srimati Charusila Trust and the properties appertaining thereto. By its judgment and order dated October 5, 1953, the High Court of Patna has held that the trust in question is a private trust created for the worship of a family idol in which the public are not interested and, therefore, the provisions 604 of the Bihar Hindu Religious Trusts Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, do not apply to it. Accordingly, it allowed an application made to it under article 226 of the Constitution and quashed the proceedings taken against the respondent herein under sections 59 and 70 of the Act. The State of Bihar, the President of the Bihar State Board of Religious Trusts and the Superintendent of the said Board who were respondents to the petition under article 226 are the appellants before us. The trust in question was created by a trust deed executed on March 11, 1938. Srimati Charusila Dasi is the widow of one Akshaya Kumar Ghose of No. 3, Jorabagan Street in Calcutta. She resided at the relevant time in a house known as Charu Niwas at Deoghar in the district of Santhal Parganas in the State of Bihar. In the trust deed she described herself as the settlor who was entitled to and in possession of certain properties described in schedules B, C and D. Schedule B property consisted of three bights and odd of land situate in mohalla Karanibad of Deoghar town together with buildings and structures thereon schedule C property was Charu Niwas, also situate in Karanibad of Deoghar; and schedule D properties consisted of several houses and some land in Calcutta the aggregate value of which was in the neighborhood of Rs. 8,50,000. In a subsequent letter to the Superintendent, Bihar State Board of Religious Trusts, it was stated on behalf of Srimati Charusila Dasi that the total annual income from all the properties was about Rs. 87,839. In the trust deed it was recited that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshipping and performing the " puja " of the said deity; that she had been erecting and constructing a twin temple (jugal mandir) and a Nat Mandir (entrance hall) to be named in memory of her deceased son Dwijendra Nath on the plot of land described in schedule B and was further desirous of installing in one of the two temples the deity Srigopal and such other deity or deities as she might wish to establish during her lifetime and also of installing in 605 the other temple a marble image of Sri Sri Balanand Brahmachari, who was her religious preceptor and who was regarded by his disciples as a divine person. It was further recited in the trust deed that the settlor was also desirous of establishing and founding a hospital at Karanibad for Hindu females to be called Akshaya Kumar Female Hospital in memory of her deceased husband. By the trust deed the settler transferred to the trustees the properties described in schedules B, C and D and the trustees were five in number including Srimati Charusila Dasi and her deceased husband 's adopted son Debi Prasanna Ghosh; the other three trustees were Amarendra Kumar Bose, Tara Shanker Chatterjee and Surendra Nath Burman, but they. were not members of the family of the settlers Amarendra Kumar Bose resigned from the office of trusteeship and was later replaced by Dr. Shailendra Nath Dutt. The trusts imposed under the trust deed were (1) to complete the construction of the two temples and the Nat Mandir at a cost not exceeding three lakhs to be met out of the trust estate and donations, if any ; (2) after the completion of the two temples, to instal or cause to be installed the deity Iswar Srigopal in one of the temples and the marble image of Sri Balanand Brahmachari in the other and to hold a consecration ceremony and a festival in connection therewith ; (3) after the installation ceremonies and festivals mentioned above, to provide for the payment and expenditure of the daily " sheba puja " and periodical festivals each year of the deity Srigopal and such other deities as might be installed at an amount not exceeding the sum of Rs. 13,600 per annum and also to provide for the daily " sheba " of the marble image of Sri Balanand Brahmachari and to celebrate each year in his memory festivals on the occasion of (a) the " Janma tithi " (the anniversary of the installation of the marble image); (b) " Gurupurnima " (full moon in the Bengali month of Ashar) ; and (c) " Tirodhan " (anniversary of the day on which Sri Balanand Brahmachari gave up his body) at a cost not exceeding Rs. 4,500 per annum ; and (4) to establish or cause to be established and run and 606 manage in Deoghar a hospital for Hindu females only to be called Akshaya Kumar Female Hospital and an attached outdoor charitable dispensary for all out patients of any religion or creed whatsoever and pay out of the income for the hospital and the outdoor dispensary an annual sum of Rs. 12,000 or such other sum as might be available and sufficient after meeting the charges and expenditure of the two temples and after paying the allowance of the " shebait " and trustees and members of the temple committee. It was further stated that the work of the establishment of the 'hospital and the out door charitable dispensary should not be taken in hand until the construction of the temples and the installation of the deities mentioned above. It may be here stated that it is the case of both parties before us that the temples and the Nat Mandir have been constructed and the deity and the marble image installed therein; but neither the hospital nor the charitable dispensary has yet been constructed. The powers, functions and duties of the trustees were also mentioned in the deed and, in schedule A, detailed rules were laid down for the holding of annual general meetings, special meetings, and ordinary meetings of the trustees. To these details we shall advert later. On October 27, 1952, the Superintendent, Bihar State Board of Religious Trusts, Patna, sent a notice to Srimati Charusila Dasi under section 59 of the Act asking her to furnish a return in respect of the trust in question. Srimati Charusila Dasi said in reply that the trust in question was a private endowment created for the worship of a family idol in which the public were not interested and therefore the Act did not apply to it. On January 5, 1953, the Superintendent wrote again to Srimati Charusila Dasi informing her that the Board did not consider that the trust was a private trust and so the Act applied to it. There was further correspondence between the solicitor of Srimati Charusila Dasi and the President of the Bihar State Board of Religious Trusts. The correspondence did not, however, carry the matter any further and on February 5, 1953, the President of the State Board of 607 Religious Trusts said in a notice that he had been authorised to assess a fee under section 70 of the Act in respect of the trust. Ultimately, on April 6,1953, Srimati Gharusila Dasi made an application to the High Court under article 226 of the Constitution in which she prayed that a writ or order be issued quashing the proceedings taken against her by the Bihar State Board of Religious Trusts on the grounds (a) that the trust in question was a private trust to which the Act did not apply and (b) that the Act was ultra vires the Constitution by reason of the circumstance that its several provisions interfered with her rights as a citizen guaranteed under article 19 of the Constitution. This application was contested by the State of Bihar and the Bihar State Board of Religious Trusts, though no affidavit was filed by either of them. On a construction of the trust deed the High Court came to the conclusion that the trust in question was wholly of a private character created for the worship of a family idol in which the public were not interested and in that view of the matter held that the Act and its provisions did not apply to it. Accordingly, the High Court allowed the application and issued a writ in the nature of a writ of certiorari quashing the proceedings under sections 59 and 70 of the Act and a writ in the nature of a writ of prohibition restraining the Bihar State Board of Religious Trusts from taking further proceedings against Srimati Charusila Dasi in respect of the trust in question. The appellants then applied for and obtained a certificate from the High Court that the case fulfilled the requirements of article 133 of the Constitution. The present appeal has been filed in pursuance of that certificate. In connected Civil Appeals numbered 225, 226, 228, 229 and 248 of 1955 (1) judgment has been pronounced to day, and we have given therein a conspectus of the provisions of the Act and have further dealt with the question of the constitutional validity of those provisions in the context of fundamental rights guaranteed by Part III of the Constitution. We have held therein that the provisions of the Act do not take away or (1) Mahant Moti Das vs section P. Saki, see P. 563, ante, 608 abridge any of the rights conferred by that Part. In Civil Appeal No. 343 of 1955 (1) in which also judgment has been pronounced today, we have considered the definition clause in section 2(1) of the Act and come to the conclusion that the Act does not apply to private endowments, and have further explained therein the essential distinction in Hindu law between private and public religious trusts. We do not wish to repeat what we have said in those two decisions; but in the light of the observations made therein, the two questions which fall for decision in this appeal are (I) if on a true construction of the trust deed dated March 11, 1938, the Charusila Trust is a private endowment created for the worship of a family idol in which the public are not interested, as found by the High Court and (2) if the answer to the first question is in the negative, does the Act apply by reason of section 3 thereof to trust properties which are situate outside the State of Bihar. We now proceed to consider and decide these two questions in the order in which we have stated them. On behalf of the appellants it has been contended that on a true construction of the deed of trust, the Charusila Trust must be held to be a public religious trust. The learned Judges of the High Court emphasised that part of the preamble wherein it was stated that the settler had installed a deity called Iswar Srigopal in her house and had been regularly worshiping the said deity, which circumstance (according to them) showed that in its, origin the endowment was a private endowment created for the worship of a family idol in which the public were not interested, and the learned Judges were further of the view that the installation of the said deity in one of the two temples and of the marble image of Sri Balanand Brahmachari in the other temple did not, alter the nature of the endowment which continued to be a expressed the opinion that deed for the establishment of a females and a charitable dispensary for patients of any main objects of the endowment. These findings of the private endowment; they also the provision in the trust hospital for Hindu religion or creed was merely incidental to the other (1) Mahant Ram saroop Dasji vs section e. sahi, see 609 High Court have been seriously and strenuously challenged before us. We say this with respect, but we consider that the learned Judges of the High Court have failed to give to several material clauses of the trust deed their due weight and these have an important bearing on the question in issue. It is true that the settler said that she had installed the deity Iswar Srigopal in her house and she had been regularly worshipping the deity since such installation; if the trust had been created only for the purpose of continuing such family worship, the conclusion would no doubt be that the endowment was wholly of a private character in which the public had no interest. That was not, however, what was done. The settlor created the trust for the construction of two temples, in 'one of which was to be installed the deity Iswar Srigopal and in the other the marble image of her preceptor; the trustees consisted of persons three of whom were strangers to the family, though the settlor reserved to herself the power to remove in her absolute discretion any one or more of the trustees for misconduct by reason of change of religion, etc. One of the relevant considerations is if by the trust deed any right of worship has been given to the public or any section of the public answering a particular description. One of the clauses of the trust deed reads : " The ' pronamis ' and perquisites to be offered to the deities and image in the Jugal Mandir shall form part of the Srimati Charusila Trust Estate and neither the shebait nor any one else shall have interest or claim in or over same." This clause to which the learned Judges of the High Court have made no reference shows that the right of worship was not confined to the family of the settlor or founder, but was given to other members of the Hindu public who could offer " pronamis " and perquisites to the deities, and those I pronamis ' and perquisites were to form part of the trust estate. Schedule E of the deed gives details of the festivals and ceremonials to be performed for the deity and the image of Sri Balanand Brahmachari. One of the cere monials is a Jal Chhatra " (free distribution of 77 610 water); another is annakoot " (distribution of food) at the time of Diwali, the approximate expenditure being fixed at Rs. 500. A third ceremony is a "bhandara ", culminating in free distribution of food, of the Mataji of Sri Balanand Brahmachari. These are ceremonies which even if ancillary to "deva sheba", appear prima facie to confer benefit on the general body of worshippers. Though not conclusive by them selves, they have to be considered in the light of the other main provisions of the trust deed. The other festivals which have to be performed as a rule for the deity are such well known festivals as Rath Yatra, Jhulan, Janmastami, Rash and Dol (Holi) in which members of the Hindu community usually take part in large numbers, and the scale of expenses laid down shows that the festivals are to be performed on a large scale so as to enable a large number of persons to take part in them. Even with regard to the special festivals for Sri Balanand Brahmachari on the occasion of the Janmatithi, Gurupurnima and Tirodhan, the provisions of the trust deed contemplate that they are to be performed on a large scale so that other disciples of Sri Balananda Brahmachari may also join in them. Even the constitution of the committee of trustees is such as would show that the endowment is not a mere private endowment. The trust deed says " In filling up a vacancy the trustees shall see that in the Board of Trustees there shall be, if available, one who is the seniormost lineal male descendant of Akshaya Kumar Ghose, the deceased husband of the settlor, who is eligible and willing and capable of acting as a trustee, another who is a trustee of the Sree Sree Balanand Trust created at Deoghar by the said Sree Balanandji Brahmachari Maharaj of sacred memory, and a third who shall be disciple of Sree Sree Balanand order, that is to say, any one of the disciples of the said Sree Sree Balanand Brahmachari Maharaj of sacred memory and his disciples and the disciples of the latter and so on if such a disciple is willing, eligible and capable of acting as a trustee of the said Trust hereby created, provided always that the full number of trustees shall at all times be five in number and no one 611 shall be eligible to be a trustee unless he be adult male, pious, Bengali Hindu and provided also that the shebait of Sree Gopal and the shebait of Sree Baleshwari Devi of the Ashram Deoghar shall under no circumstances be eligible to be a trustee tinder these presents save and except in the case of the settlor who shall so long as she lives to both a trustee and a shebait. " We may here draw attention to the formation of the temple committee as envisaged by the trust deed. It says that the temple committee 'shall consist of the Jugal Mandir shebait for the time being who shall be the ex officio member and president of the committee and the other members who will be appointed or nominated by the trustees shall consist of six pious Hindus who must be residents of Deoghar and of whom at least four shall be Bengalis. If the trust were created for the worship of a family idol, one would not expect provisions of this nature which vest the management of the temple and the " sheba puja " in members of the public outside the family of the settlor. Besides the aforesaid provisions, there is in express terms the imposition of a trust in favour of the public so far as the hospital and the charitable dispensary are concerned. It is necessary to quote here el. 8 of the trust deed. That clause reads: " To establish or cause to be established and run and manage in Deoghar a hospital for Hindu females only to be called in memory of the husband of the settlor, since deceased, the " Akshaya Kumar Female Hospital " and an attached out door Charitable Dispensary for all out patients of any religion or creed whatsoever and out of the said income to pay and/or spend for the objects of the said Hospital and out door Dispensary annually a sum of rupees twelve thousand or such sum as will be available and sufficient after meeting the aforesaid charges and expenditure and after paying the allowance of the shebait and trustees and members of the temple committee and the establishment charges of offices at Calcutta and Deoghar and of the temple establishment hereinafter mentioned provided however that the work of the establishment 612 of the Hospital and out door Charitable Dispensary shall not be taken in hand by the trustees until the construction of the temple and installation of the deities hereinbefore mentioned." The trust deed further states that the female hospital and charitable dispensary shall, so long as the settlor is alive, be located in a house to be rented in Deoghar and after her death shall be shifted to and located in Charu Niwas. Charu Niwas was, however, sold by an order of the Calcutta High Court and the sale proceeds, it is stated, were appropriated towards the satisfaction of the debts and liabilities of the trust estate. One clause of the trust deed relating to the hospital and the charitable dispensary says: " The object of the said Hospital shall be to provide Hindu females with gratuitous medical and surgical and maternity advice and aid and also to admit them as indoor patients in conformity with such rules and regulation as may be made by or with the sanction of the Board of Trustees. The outdoor Charitable Hospital shall be run as the trustees shall provide by rules. In furtherance of these objects, its funds may be expended in subscriptions or contributions to convalescent and other similar institutions and to other special hospitals and in sending patients to and maintaining them in such institution and hospitals provided that the sum so expended in any one year shall not exceed rupees one thousand or such sum as may be fixed by the trustees from time to time. " The learned Judges of the High Court have expressed the view that these provisions for the establishment of a hospital and charitable dispensary are merely incidental or ancillary to the other main objects of the trust. With great respect, we are unable to appreciate how the establishment of a hospital and charitable dispensary of the nature indicated in the trust deed can be said to be ancillary or incidental to other objects of the trust, viz., the construction of two temples and the installation of the deities therein. In clear and unequivocal terms the trust deed imposes a distinct and independent trust in favour of a considerable section of the public for whose benefit the hospital 613 and the charitable dispensary are to be established. It is true that the establishment of the hospital and the charitable dispensary is to be taken in hand after the construction of the temples and the installation of the deities; that circumstance, however, does not make the trust in relation to the hospital and the dispensary any the less important or even merely incidental or ancillary to the other trusts. It merely determines the priority of time when the different trusts created by the deed are to be given effect to. The High Court has placed reliance on the decision in Prasaddas Pal vs Jagannath Pal (1). That was a case in which by the deed of endowment were dedicated certain houses and premises to the " sheba of a family idol established in one of the said houses and for feeding the poor and carrying out other charitable objects; the deity was installed inside one of the residential quarters, the " shebaitship " was confined to the members of the family of the founder, and the feeding of the poor and of students, in case the income of the debutter property increased, was found to be part and parcel of the "debasheba ", and in those circumstances it was held that the feeding of the poor etc. was not an independent charity but incidental to the main purpose of the endowment, viz., the " puja " of the deity. We are unable to hold that the same considerations apply to the trust before us. In Deoki Nandan vs Murlidhar (2) this Court considered the principles of law applicable to a determination of the question whether an endowment is public or private, and observed: " The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a familyidol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But (1) Cal.538. (2) ; , 762. 614 where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers. " One of the facts which was held in that case to indicate that the endowment was public was that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. We do not suggest that such a fact is by itself decisive of the question. The fact that the temple is outside the dwelling house is only a circumstance in favour of it being regarded a public temple, particularly in Madras (except Malabar); there are, however, private temples in Bengal which are built outside the residential houses of donors (see the Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by the late Dr. B. K. Mukherjea, 1952 edition, p. 188). In the case before us, the two temples were constructed outside the residential quarters, but that is only one of the relevant circumstances. We must construe the deed of trust with reference to all its clauses and so construed, we have no doubt that the trusts imposed constitute a public endowment. There is one other point to be noticed in this connexion. The deed of trust in the presept case is in the English form and the settlor has transferred the properties to trustees who are to hold them for certain specific purposes of religion and charity; that in our opinion is not decisive but is nevertheless a significant departure from the mode a private religious endowment is commonly made. It is necessary now to refer to a decision of the Calcutta High Court, In re Charusila Dasi (1) relating to this very trust. The question for consideration in that case was the assessment of income tax on the income of this trust estate for the accounting year 193839. The trustees were assessed upon the whole income of the trust. 'The trustees appealed against the assessment and contended that the entire trust was for public, religious and charitable purposes and the whole income (1) I.L.R. 615 fell within cl. (1) of sub section 3 of section 4 of the Income tax Act. The contention of the Commissioner of Income tax was that the trust was no more than a private religious trust and the income did not enure for the public benefit, save with respect to that part of the income which was to be devoted to the hospital and dispensary and to which the latter part of cl. (1) applied. A reference was accordingly made to the High Court and the question framed was whether on a proper construction of the deed of trust, so much of the income of the trust as was not applied for the purpose of constructing and maintaining the female hospital was exempt from tax under the provisions of section 4(3) of the Indian Income tax Act. It was pointed out before the High Court that no part of the income of the trust during the accounting year was devoted to the hospital and dispensary and it was conceded that part of the income which would be devoted to those institutions would fall within the exempting clause. It so happens that the learned counsel who argued the case on behalf of the trustees in the Calcutta High Court in the income tax reference is the same counsel who has argued the case before us on behalf of Srimati Charusila Dasi. The contention now is that the trust in its entirety is a private religious trust. Eleven circumstances were referred to by learned counsel in the income tax reference in support of his contention that the entire trust as ascertained from the trust deed was of a public nature. Gentle, J., with whom Ormond, J., agreed, held that on a proper construction of the deed of trust, so much of the income of the trust as was not applied for the purpose of constructing an maintaining the female hospital was not exempt from tax under the provisions of section 4(3) of the Indian Income tax Act. This decision, it must be stated at once, does not wholly support the present respondent. So far as the hospital and the dispensary are concerned the trust was held to be a public trust. We are of the view that having regard to the main clauses of the trust deed to which we have already made a reference, the trusts in favour of the deity Iswar Srigopal and the image of Sri Balanand Brahmachari are also of a public nature. 816 One of the points which was emphasised before the Calcutta High Court was the provision with regard to pronamis " and perquisites to be offered to the deity and the image. The High Court said: " This provision does not indicate the creation of a trust in favour of the public, but, on the contrary, it denies the right of any one, which must include any member of the public. having a right to the pronamis. In its terms, the deed negatives that benefit is conferred upon the public ". The aforesaid observations appear to us, with respect, to be based on a misconception. When a member of the public makes an offering to a deity, he does not retain any right to what he has offered. What he offers belongs to the deity. When we talk of the right of members of the public or a considerable section thereof, we refer to the right of worship or the right to make offerings in worship of the deity and not of the right to the offerings after they have been made. With regard to other clauses of the trust deed also we take a view different from that of the learned Judges 'who decided the income tax reference. We have already explained our view in the preceding paragraphs and it is unnecessary to reiterate it. The conclusions at which we have arrived on a construction of the deed of trust is that it creates a religious and charitable trust of a public nature. Now, we proceed to a consideration of the second point. Section 3 of the Act says " This Act shall apply to all religious trusts, whether created before or after the commencement of this Act, any part of the property of which is situated in the State of Bihar ". The argument before us on behalf of the respondent is this. Under article 245 of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Clause (2) of the said Article further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. Article 246 gives the distribution of legislative power; 617 Parliament has exclusive power to make laws with respect to any of the matters enumerated in what has been called the Union List; Parliament as also the legislature of a State have power to make laws with respect to any of the matters enumerated in the Concurrent List; the legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List. Item 28 of the Concurrent List is,, charities and charitable institutions, charitable and religious endowments and religious institutions ". Learned counsel for the respondent contends that by reason of the provisions in articles 245 and 246 of the Constitution read with item 28 of the Concurrent List, the Bihar legislature which passed the Act had no power to make a law which has operation outside the State of Bihar; he further contends that under section 3 the Act is made applicable to all religious trusts, whether created before or after the commencement of the Act, any part of the property of which is situated in the State of Bihar; therefore, the Act will apply to a religious institution which is outside Bihar even though a small part of its property may lie in that State. It is contended that such a provision is ultra vires the power of the Bihar Legislature, and Parliament alone can make a law which will apply to religious institutions having properties in different States. Alternatively, it is contended that even if the Act applies to a religious institution in Bihar a small part of the property of which is in Bihar, the provisions of the Act can have no application to such property of the institution as is outside Bihar, such as the Calcutta properties in the present case. It is necessary first to determine the extent of the application of the Act with reference to sections 1 (2) and 3 of the Act read with the preamble. The preamble states: " Whereas it is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts 78 618 It is clear from the preamble that the Act is intended to provide for the better administration of Hindu religious trusts in the State of Bihar. Section 1 (2) states that the Act extends to the whole of the State of Bihar, and section 3 we have quoted earlier. If these two provisions are read in the context of the preamble, they can only mean that the Act applies in cases in which (a) the religious trust or institution is in Bihar and (b) any part of the property of which institution is situated in the State of Bihar. In other words, the aforesaid two conditions must be fulfilled for the application of the Act. It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not in operative; see the cases referred to In re the Hindu Women 's Right to Property Act, 1937 and The Hindu Women 's Rights to Property (Amendment) Act, 1936 and In re a Special Reference under section 213 of The Government of India Act, 1935 (1), and the decision of this Court in R. M. D. Chamarbaugwalla vs The Union of India (2). We accordingly hold that section 3 makes the Act applicable to all public religious trusts, that is to say, all public religious and charitable institutions within the meaning of the definition clause in section 2 (1) of the Act, which are situate in the State of Bihar and any part of the property of which is in that State. In other words, both conditions must be fulfilled before the Act can apply. If this be the true meaning of section 3 of the Act, we do not think that any of the provisions of the Act have extra territorial application or are beyond the competence and power of the Bihar Legislature. Undoubtedly, the Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, " charities, charitable institutions, charitable and religious endowments and religious institutions " situate in the State of Bihar. The question, therefore, narrows down to, this: in so legislating,, has it power to affect trust (1) , 27 30. (2) 619 property which may be outside Bihar but which appertains to the trust situate in Bihar ? In our opinion, the answer to the question must be in the affirmative. It is to be remembered that with regard, to an interest under a trust the beneficiaries ' only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situate or at the trustees ' place of residence: see Dicey 's Conflict of Laws, 7th edition, p. 506. The Act purports to do nothing more. Its aim. , as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer, the trust. Therefore, there is really no question of the Act having extraterrestrial operation. In any case, the circumstance that the temples where the deities are installed are situate in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust. This Court has applied the doctrine of territorial connection or nexus to income tax legislation, sales tax legislation and also to legislation imposing a tax on gambling. In Tata Iron & Steel Co. Ltd. vs State of Bihar (1) the earlier cases were reviewed and it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It cannot be disputed that if the religious endowment is itself situate& in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory ; indeed, the religious institution (I) ; 620 and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other. If, therefore, any liability is imposed on the trustees, such liability must affect the trust property It is true that in the Tata Iron & Steel Co. 's case this Court observed : " It is not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation is applicable to all kinds of legislation. It will be enough for disposing of the point now under consideration, to say that this Court has found no apparent reason to confine its application to income tax legislation but has extended it to sales tax and to tax on gambling. " We do not see any reason why the principles which were followed in The State of Bombay vs R. M. D. Chamarbaugwala (2) should not be followed in the present case. In R. M. D. Chamarbaugwala 's case (2) it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that " all the activities which the gambler is ordinarily expected to undertake" took place mostly, if not entirely, in the State of Bombay. These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground of extra territoriality. We are of the opinion that the same principles apply in the present case and the religious endowment itself being in Bihar and the trustees functioning there, the Act applies and the provisions of the Act cannot be struck down on the ground of extra territoriality. We proceed now to consider some of the decisions on which learned counsel for the respondent has placed reliance. These are (1) Sirdar Gurdyal Singh vs The Rajah of Faridkote (3) ; (2) Commissioner of Wakfs, Bengal (1) ; (2)[1957] S.C.R. 874. (3) (1894) 21 I.A. 17r, 185. 621 V. Narasingh Chandra Daw and Co. (1); (3) Madangopal Bagla vs Lachmidas (2); and (4) Maharaj Kishore Khanna vs Raja Ram Singh (3 ). Those decisions, in our opinion, are not in point, as they related to different problems altogether. In Sirdar Gurdyal Singh 's case (4) a Faridkote court passed an ex parte money decree against a defendant who had been a treasurer of Faridkode, but who at the time of suit had ceased to be such and was resident in Jhind of which State he was a domiciled subject; it was held that the decree was a nullity by international law. The ratio of the decision was thus expressed by Lord Selborne: "Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. . . In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity. " The decision in Commissioner of Wakfs, Bengal vs Narasingh Chandra Daw & Co. (1) proceeded on a construction of section 70 of the Bengal Wakf Act which also had a section similar to section 3 of the Act. Section 70 of the Bengal Wakf Act required notice to the Commissioner of Wakfs before any wakf property could be sold and the question was whether a court in Assam was under any obligation to send such a notice. It was held that the Bengal Act did not apply to Assam and section 70 stood in a different category from the other sections of the Bengal Act. The ratio of the decision was thus explained : " So far as the status of the Commissioner is concerned, it is conferred by the Bengal Act to operate even outside the province. Therefore, the Commissioner may bring suits under section 72 or section 73 of the Bengal Act in courts outside the province. But section 70 lies (1) I.L.R. (3) A.I.R. 1954 Pat. 164. (2) I.L.R. (4) (1894) 21 I.A. 171, 185. 622 in a different category, because it imposes an obligation on the court to issue notice to the Commissioner in certain circumstances. . Section 70(1) refers to a suit or proceeding in respect of any wakf property, etc., and if this wakf property is situated outside the province, so that the court having jurisdiction over it is also outside the province, then the Act cannot operate beyond its extent, that is to say outside the province of Bengal. " The decision in Madangopal Bagla vs Lachmidas and the decision in Maharaj Kishore Khanna vs Raja Ram Singh (1) both related to the interpretation of some of the provisions of the United Provinces Encumbered Estates Act (U. P. Act 25 of 1934). In the former case the limited question for decision was if the decreeholder under a decree of the Original side of the Calcutta High Court was precluded from executing the decree by reason of certain proceedings which had taken place before the Special Judge, Banaras, under the United Provinces Encumbered Estates Act, 1934. The answer given was that the decreeholder was not so precluded and the decision proceeded on a construction of section 18 of the United Provinces Encumbered Estates Act, 1934, read with sections 7, 13 and 14(7) of that Act. It was held that the exclusive jurisdiction intended to be conferred on the Special Judge in supersession of those of civil and revenue courts extended,, as indicated by section 7, only over debts enforceable through the courts within the province and the word " creditor " in section 10 must be limited to those of them who would have to enforce their rights through such courts alone. In the Patna case the question for decision was if section 14(7) of the U. P. Encumbered Estates Act, 1934, should be construed to mean that the decree of a Special Judge is to be deemed to be the decree of a civil court of competent jurisdiction even beyond the territorial jurisdiction of the State Legislature. It was held that the decree passed by the Special Judge of Banaras had not the effect of a decree of a civil court outside the territorial limits of the United Provinces and the Sub (1) I.L.R. (2) A.I.R. 1954 Pat. 164. 623 ordinate Judge of Purnea in Bihar had no jurisdiction to execute such a decree or to direct that the properties of a judgment debtor in Purnea should be attach, ed in execution of the decree. As we have said earlier, these decisions relate to an altogether different problem, namely, the proper construction of certain sections of the Bengal Wakf Act or of the United Provinces Encumbered Estates Act. The problem before us is of a more general nature and the aforesaid decisions are no authorities for the solution of that problem. There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided on March 18, 1953). A similar problem arose in that case where the head of a math situate in Banaras made an application under article 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950, on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to that math. In the course of the hearing of the petition the learned Attorney General who appeared for the State of Bom bay made it clear that there was no intention on the part of the Government of Bombay or the Charity Commissioner to apply the provisions of the Bombay Act to any math or religious institution situated outside the State territory. The learned Attorney General submitted that the Bombay Act could be made applicable, if at all, to any place of religious instruction or worship which is appurtenant to the math and is actually within the State territory. In view of these submissions no decision was given on the point urged. The case cannot, therefore, be taken as a final decision of the question in issue before us. For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of extra territoriality. 624 The result is that the appeal succeeds and is allowed with costs, the judgment and order of the High Court dated October 5, 1953, are set aside and the petition of Srimati Charusila Dasi must stand dismissed with costs. Appeal allowed.

A deed of trust was executed by the respondent on March II, 1938, when she was residing at D in the State of Bihar, in respect of the properties described in the Schedules referred to in the deed, some of which were situate outside the State of Bihar. In the trust deed she described herself as the settlor, and it was recited therein that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshiping and performing the puja of the said deity; and that she had been erecting a Nat Mandir to be named in memory of her deceased son. The recitals also showed that the settlor had provided for the construction of two temples (jugal Mandir), in one of which was to be installed the deity Srigopal and other deities, and in the other the marble image of, her preceptor and that the temple, committee shall consist of the, Jugal. Mandir shebait for the time being and six pious Hindus who must be residents. of D and of whom at least four shall be Begalis. One 76 602 of the clauses of the trust deed recited : "The ' pronamis ' and perquisites to be offered to the deities and image in the jugal Mandir shall form part of the Srimati Charusila Trust Estate and neither the shebait nor any one else shall have interest or claim in or over same. ,, The provisions of the trust deed in regard to the ceremonials relating to free distribution of food and water and the festivals to be performed for the deity and the image, which were well known festivals in which members of the Hindu Community usually take part, contemplated that they were to be done on a large scale so as to enable a large number of persons to take part in them. There was also a provision in the trust deed for the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed. After the coming into force of the Bihar Hindu Religious Trusts Act, 1950, the President of Bihar State Board of Religious Trusts started proceedings under sections 59 and 70 Of the Act against the respondent in respect of the trust on the footing that it was a public trust to which the Act applied. The respondent made an application to the Patna High Court under article 226 of the Constitution in which she prayed that a writ or order be issued quashing the proceedings taken against her by the Bihar State Board of Religious Trusts on the grounds (I) that the trust deed dated March II, 1938, was a private endowment created for the worship of a family idol in which the public were not interested, (2) that the Act did not apply to private trusts, (3) that the Act was ultra vires the Constitution by reason of the circumstance that its several provisions interfered with her rights as a citizen guaranteed under Part III of the Constitution, and (4) that, in any case, the Act was not applicable to the trust deed in question as some of the properties were situate outside the State of Bihar. Held (1) that on its true construction the deed of trust dated March 11, 1938, created a religious and charitable trust of a public nature. Deoki Nandan vs Murlidar, ; , considered. In re Charusila Dasi, I.L.R. [1946] I Cal. 473, explained. One of the relevant considerations as to whether the trust was a public trust, will be if by the trust deed any right of worship has been given to the public or any, section of the public answering a particular description. (2) that the Act does not apply to private endowments. Mahant Ram Saroop Dasji vs section P. Sahi, [1959] SUPP. 2 S.C.R. 583, followed. (3) that the provisions of the Act do not take away or abridge any of the rights conferred by Part III of the Constitution. Mahant Moti Das vs section P. Sahi, [1959] Supp. 2 S.C.R. 563, followed. 603 (4) that section 3 of the Act makes the Act applicable to all public religious and charitable institutions within, the meaning of the definition clause in section 2(1) Of the Act, which are situate in the State of Bihar and any part of the property of which is in that State. (5) that where the trust is situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust, and as the object of the Act is to provide for the better administration of Hindu Religious Trusts in the State of Bihar and for the protection of properties appertaining thereto, in respect of the property belonging to the trust outside the State the aim is sought to be achieved by exercising control over the trustees in Personam, and there is really no question of the Act having extra territorial operation. (6) that, in the present case, the circumstance that the temples where the deities were installed are situate in Bihar and that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu Public in Bihar, gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such. trust. Tata Iron & Steel Co. Ltd. vs State of Bihar, [1958] S.C.R. 1355 and The State of Bombay vs R.M.D. Chamaybaugwala, (1957] S.C.R. 874, relied on. Saydar Gurdyal Singh vs The Rajah of Faridkote, (1894) L.R. 21 I.A. I71, distinguished.

minal Appeal No. 252 of 1964. Appeal by special leave from the judgment and order dated July 30, 1964 of the Punjab High Court in Criminal Miscella neous No. 742 of 1962. M. C. Setalvad, and Naunit Lal, for the appellant. J. N. Kaushal, Advocate General for the State of Punjab and R. N. Sachthey, for the respondents. The Judgment of the Court was delivered by Wanchoo J. This appeal by special leave from the judgment of the Punjab High Court was heard on January 20, 1965. We then pronounced a short order allowing the appeal and directing the release of the detenu and indicated that reasons would follow later. We now proceed to give the reasons. The appellant was detained under r. 3 0 (1 ) (b) of the Defence of India Rules (hereinafter referred to as the Rules) by an order passed by Shri Lal Singh on June 30, 1964. That order was passed by Shri Lal Singh as District Magistrate of Amritsar. The only point that has been urged before us on behalf of the detenu is that Shri Lal Singh was not the District Magistrate of Amritsar on June 30, 1964 and therefore he had no power to pass the order of detention under the Defence of India Act, No. 51 of 1962, (hereinafter referred to as the Act and the Rules. It is necessary to set out certain facts with respect to the position Shri Lal Singh was occupying on June 30, 1964 when the order of detention was passed. It appears that Shri P. N. Bhalla was the District Magistrate of Amritsar in April 1964. He was ordered to be transferred to the Secretariat by an order passed on April 23, 1964. At that time Shri Lall Singh was the Additional District Magistrate of Amritsar and had been inter alia invested under section 10 (2) of the Code of Criminal Procedure (hereinafter referred to as the Code) with all the powers of a District Magistrate under the Code or under any other law for the time being in force by an order which had been passed on April 10, 1963. Further when the order of transfer of Shri Bhalla was made, instructions were issued that Shri Bhalla should hand over charge to Shri Lall Singh, Additional Deputy Commissioner, Amritsar who would hold the current charge of the post of Deputy Commissioner, Amritsar, till further orders. It appears that Shri Bhalla handed over charge of the office of the Deputy Commis 847 sioner to Shri Lall Singh on the afternoon of May 15, 1964 in accordance with the instructions above mentioned, and thus Shri Lall Singh was in current charge of the office of Deputy Commissioner, Amritsar from May 16, 1964. No order appointing Shri Lall Singh as District Magistrate of Amritsar as required under section 10 (1) of the Code was passed. But as Shri Lall Singh was already invested as an Additional District Magistrate with all the powers of the District Magistrate under the Code and under any other law for the time being in force, he carried on the duties of ' the office of the District Magistrate also. At the same time it may be noted that no other officer was posted as District Magistrate from May 16 till June 30, 1964 when the order of detention was passed. The new District Magistrate Shri lqbal Singh took over charge as District Magistrate, Amritsar, on July 1, 1964 and ' Shri Lall Singh was then appointed as District Magistrate, Hissar. On these facts the contention on behalf of the detenu is that Shri Lall Singh was not the District Magistrate of Amritsar on June 30, 1964, even though he signed himself as District Magistrate when he passed the order of detention. It is submitted that in the absence of an order under section 10 (1) of the Code appointing Shri Lall Singh as District Magistrate of Amritsar, he could not be the District Magistrate of Amritsar for the purpose of passing an order of detention under the Act and the Rules, whatever might be his powers to carry on the administration of the district as an Additional District Magistrate and Additional Collector under the powers conferred on him by various notifications of April 1963. Consequently the order of detention passed by him on June 30, 1964, was without authority and liable to be set aside. In reply, the learned Advocate General for the State of Punjab has raised two points. In the first place he urges that the notification delegating to all District Magistrates the State Government 's powers to detain persons under r. 30 of the Rules is law and relies in this connection on the decision of this Court in Jayantilal A mratlal Shodhan vs F. N. Rana(1). It is further contended that by the notification of April 1963, Shri Lall Singh was invested with an the powers of a District Magistrate under the Code and under any other law for the time being in force and would therefore have the power to detain persons under the law contained in the notification delegating the power of detention to all District Magistrates. In the second place it is urged that as Shri Lall 1. ; 848 Singh was holding charge of the current duties of the office of the Deputy Commissioner and as no one else had been posted in Amritsar between May 16 and June 30, 1964 as District Magistrate lie was in fact and in law the District Magistrate of Amritsar. We do not think it necessary for purposes of this case to decide the first point raised by the learned Advocate General, for we have come to the conclusion that no officer other than the District Magistrate of a District can pass an order of detention under r. 30 of the Rules in view of the provisions of the Act and of the Rules to which we shall now refer. Section 3(1) of the Act gives power to the Central Government by notification in the Official Gazette to make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of community. Section 3 (2) then provides for the making of rules for various purposes without prejudice to the generality of the powers conferred by section 3 (1), and the 15th clause thereof provides for detention. The relevant portion of that clause necessary for our purposes reads thus : "(15). Notwithstanding anything in any other law for the time being in force (i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable, of being of hostile origin or having acted, acting, being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security of the State, the public safety or interest, the maintenance of public order, India 's relations with foreign States, the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations, or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner. " It would be seen that section 3 (2) (15) (i) which is the source of power to detain according to the Rules to be framed thereunder itself 849 lays down that the authority empowered to detain shall not be lower in rank than that of a District Magistrate. Then we came to section 40 (2) of the Act, which gives power to the State Government to delegate its powers to any officer or authority subordinate to it. This power of delegation, however, must be read harmoniously with section 3 (2) (15) and therefore under section 40 (2) the State Government cannot delegate its power to detain to any officer below the rank of a District Magistrate. Rule 30 of the Rules then provides for detention and under that rule the power is conferred on the Central Government or the State Government to detain any person. That power of the State Government can however be delegated under section 40 (2) to any officer subordinate to it. But as we have already indicated the power of delegation must be read harmoniously with section 3(2)(15) and therefore the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate. The position is further clearly brought out in r. 30 A which provides for review of a detention order made by an officer. It is made clear there also that the officer shall in no case be lower in rank than a District Magistrate. The effect of these provisions thus is that the power of detention can either be exercised by the State Government or by its delegate who however can in no case be lower in rank than a District Magistrate. The Act and the Rules therefore show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. We may in this connection contrast the language of section 3 (2) of the Preventive Detention Act, No. 4 of 1950, which lays down that any of the following officers, namely: (a) district magistrates, (b) additional district magistrates specially empowered in this behalf by the State Government, (c) (d) may exercise the powers conferred by section 3 (1) (a) (ii) and (iii). If the intention under the Act and the Rules was that the Additional District Magistrate may also exercise the power of detention conferred thereunder we would have found a provision similar to that contained in the Preventive Detention Act. 850 Two questions then arise on the view we hold that no officer below the rank of a District Magistrate can exercise the power of detention under the Act and the Rules. The first is whether Shri Lal Singh was the District Magistrate of Amritsar on June 30, 1964. Secondly if he was not the District Magistrate on that date, could he as Additional District Magistrate exercise the power of detention and that would depend upon whether an Additional District Magistrate is of the same rank as the District Magistrate or below him in rank ? Now section 10 (1) of the Code provides for the appointment of a District Magistrate and lays down that "in every district outside the presidency towns, the State Government shall appoint, a Magistrate of the first class, who shall be called the District Magistrate". The appointment of a District Magistrate therefore has to be made under section 10 (1). Section 10(2) then gives power to the State Government to appoint any Magistrate first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force as the State Government may direct. But even if an Additional District Magistrate has been appointed with all the powers under the Code and also under any other law for the time being in force, he is still not the District Magistrate unless the Government appoints him as such under section 10 (1) of the Code. Further section 11 of the Code envisages the contingency of the office of the District Magistrate becoming vacant. It provides that where this contingency arises, any officer succeeding temporarily to the chief executive administration of the district shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by the Code on the District Magistrate. But even if an officer is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the District Magistrate until he is appointed as such under section 10(1) of the Code. We have therefore to see whether Shri Lall Singh was appointed as District Magistrate of Amritsar under section 10 (1) of the Code. As to that it is admitted that there was no notification appointing Shri Lall Singh as the District Magistrate of Amritsar under section 10(1) of the Code. All that the Advocate General can point out is the instruction issued by the Governor of the Punjab when transferring Shri Bhalla who was the District Magistrate of Amritsar to the effect that Shri Bhalla should hand over charge to Shri Lall Singh who will hold the current 851 charge of the office of the Deputy Commissioner, Amritsar. This means that there was a temporary vacancy on the transfer of Shri Bhalla and Shri Lall Singh temporarily succeeded to the chief executive administration of the district. As such he would be entitled to exercise the powers of the District Magistrate under the Code under s.11. Further as he had been empowered as Additional District Magistrate to exercise powers of the District Magistrate under any other law for the time being in force:, he would exercise those powers also by virtue of being so authorised. But even though Shri Bhalla may have gone away after handing over charge on the afternoon of May, 15, 1964 Shri Lall Singh could not and did not become the District Magistrate of Amritsar in the absence of a notification under section 10 (1) of the Code by the State Government. The instructions to which we have already referred cannot in our opinion take the place of a notification under section 10 (1) of the Code. Therefore though Shri Lall Singh may be exercising all the powers of the District Magistrate by virtue of his being an Additional District Magistrate under the notification issued in April 1963 and also by virtue of section 11 of the Code he was not the District Magistrate of Amritsar in law on June 30, 1964. It is true that when passing the order he showed his designation as District Magistrate and that may be because Shri Bhalla who was the District Magistrate had gone away and no other officer had replaced him till June 30, 1964. The transfer of Shri Bhalla would not automatically make Shri Lall Singh, the District Magistrate of Amritsar, in the absence of a notification under section 10 (1) of the Code. When we say this we should not be understood to mean that a notification appointing a District Magistrate must necessarily recite in terms that it was being made under section 10 of the Code; all that we mean is that there must be an order of the State Government appointing an officer as District Magistrate of the district. In the absence of such an order no officer can claim to be the District Magistrate of the district. The instructions which were issued in this case however do not say that Shri Lal Singh was being appointed the District Magistrate of the district in place of Shri Bhalla. If that were so, we would have found a proper notification to that effect, published in the Gazette. We, therefore, hold that Shri Lal Singh was not the District Magistrate of Amritsar when he made the order on June 30, 1964. The next question is whether an Additional District Magistrate can be said to be of the same rank as the District Magistrate. We are clearly of the opinion that an Additional District Magis 852 trate is below the rank of a District Magistrate and cannot be said to be of the same rank as the District Magistrate. We may in this connection refer to section 10(2) of the Code which shows that an Additional District Magistrate need not necessarily be conferred with all the powers of the District Magistrate under the Code or any other law for the time being in force. He can be an Additional District Magistrate though he may be exercising only some of the powers of the District Magistrate. Clearly, therefore, an Additional District Magistrate must be an officer below the rank of the District Magistrate. Further sub section (3) of section 10 bears this out. That sub section says that for certain purposes, the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate. Therefore even if the Additional District Magistrate is invested with all the powers of a District Magistrate under the Code or under any other law for the time being in force he is still below the District Magistrate for certain purposes mentioned in section 10(3) of the Code. Besides there is only one District Magistrate in a district and all other magistrates whether they be Magistrates first class or even Additional District Magistrates must obviously be below him in rank. As section 3 (2) (15) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank of a District Magistrate. The order of the detention passed by Shri Lall Singh on June 30, 1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must be set aside. Appeal allowed.

The Additional District Magistrate of Amritsar who was invested with the powers of a District Magistrate under section 10(2) of the Code of Criminal Procedure, 1898 was under instructions from the State Government in charge of the office of the District Magistrate, when the District Magistrate was transferred. No order appointing him as Dis trict Magistrate as required by section 10(1) of the Code was however passed. During the period he was in charge of the office of the District Magistrate he passed an order detaining the appellant under r. 30(1)(b) of the Defence of India Rules, 1962. In appeal by special leave from Punjab High Court, it was contended by the appellant, that in the absence of an order under section 10(1) of the Code the Additional District Magistrate could not be the District Magistrate for the purpose of passing an order of detention under Defence of India Act and the Rules, and consequently the order of detention passed by him was without authority and liable to be set aside. HELD : The order of detention was not in accordance with the Defence of India Act and Rules and must be set aside, as he was not then the District Magistrate, but only an Additional District Magistrate. [852 F] The Defence of India Act and the Rules show unmistakably that the powers of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. An Additional District Magistrate is below the rank of a District Magistrate. [849 E F; 851 H 852 A] Even if an Additional District Magistrate had been appointed with all the powers under the Code and also under any other law for the time being in force, he was still not the District Magistrate unless the Government appointed him as such under section 10(1) of the Code of Criminal Procedure. [850 D E] Even if an officer was exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he was still not the District Magistrate until he was appointed as such under section 10(1) of the Code of Criminal Procedure. [850 F G] The instructions could not take the place of a notification under section 10(1) of the Code. [851 C D] 846

Civil Appeal No. 1523 of 1988. From the Judgment and order dated 13.4.1988 of the Bombay High Court in W.P. No. 479 of 1988. K.K. Venugopal, A.N. Haksar, section Vazifdar, Raian Karanjawala, Mrs. Manik Karanjawala and Hardeep section Anand for the Appellant. B. Datta, Additional Solicitor General, P. Parmeswaran, S.C. Birala and Ms. A. Subhashini for the Respondents. The Judgement of the court was delivered by VENKATARAMIAH, J. This appeal by special leave is filed against an interim order of injunction issued by the High Court of Bombay, Aurangabad Bench on 13th April, 1988 directing the three respondents; (I) Union of India, (2) Ministry of Information and Broadcasting, Parliament House, New Delhi and (3) State of Maharashtra, not to telecast and show episodes 12 and 13 of a serial entitled 'Honi Anhoni ' pending disposal of Writ Petition No. 479 of 1988 filed by Respondent No. 1, Lokvidayan Sanghatana, a registered social organisation of Pune having its branch at Aurangabad and Respondent No. 2 Mahila Sangharsha Samiti, Aurangabad represented by one of its members Smt. Anagna Patil. The writ petition was in the nature of a public interest litigation. The prayer in the writ petition was that the respondents should be directed not to telecast the serial as such telecasting was not in the public interest. The serial 'Honi Anhoni ' was being telecast by the Doordarshan, which was run by the Union of India, on every Thursday between 9 p.m. and 9.30 p.m. The 12th episode of the said serial was to be telecast on 14th April, 1988 and the 13th episode was to be telecast on 21st April, 1988. By virtue of the interim order passed on 13th April, 1988. episode No. 12 could not be telecast on 14th April, 1988. Aggrieved by the interim order passed by the High Court the appellant, Odyssey Communication Pvt. Ltd., which was the producer of the serial 'Honi Anhoni ' filed the special leave petition before this Court under Article 136 of the Constitution of India out of which this appeal arises. The said petition came up before this Court for consideration on April 2 1, 1988. After hearing the learned counsel for the appellant this Court granted special leave to prefer an appeal against 489 the order passed by the High Court and also stayed the operation of the interim order dated 13th April, 1988 passed by the High Court until further orders and permitted the Doordarshan to telecast the serial in question. In view of the above order the 12th episode of the serial was telecast on the 21st of April, 1988. The appeal was heard on the 28th of April, 1988 and this Court reserved judgment on the appeal. At the end of the hearing of the appeal on 28th April, 1988 the Court expressed that it would set aside the order passed by the High Court against which the appeal had been filed and would give reasons in the course of its judgment. Since the order of stay passed by the Court was allowed to remain in force the 13th episode, which was the last episode of the serial was telecast on the 28th April, 1988. The grounds mentioned in the writ petition in support of the prayer made in it were that in each and every episode telecast in the serial an obscure and mysterious atmosphere was being created due to the way of the presentation of the episodes and that it had created fear in the minds of the common viewers and especially of children as the serial had the effect of confirming blinds faiths, superstitious beliefs in stories of ghosts, rebirth, precognition etc. and of spreading the unscientific way of thinking and blind beliefs. It was further contended that it was the duty of the State not to encourage blind beliefs amongst the public by telecasting such episodes. It was on the basis of these grounds the High Court was requested to grant the interim order of injunction. The appellant was the producer of the said serial, yet the appellant was not made a party to the writ petition. But on its application the appellant was impleaded as a party on 12.4.1988. On 13.4.1988 the High Court passed the impugned order of temporary injunction. The appellant rushed to this Court immediately thereafter with the above said special leave petition. The appellant has stated before us that the said serial and in particular episodes 12 and 13 did not emphasise superstitious beliefs but on the contrary criticised and condemned superstition and blind faith as was ex facie apparent from the scripts of episodes 12 and 13 produced before this Court. It is stated that at the end of both the episodes a doctor and a professor gave a scientific explanation for the unusual occurrences portrayed therein and considered by people as supernatural phenomena. It is alleged that in the 13th episode after a scientific explanation of what had taken place the viewers were told as follows: "All those who without thinking spread blind faith ought to feel ashamed of themselves. We request all of you that whenever any unusual occurrencces takes place or a 490 seemingly imporbable event occurs, before believing in it, to reflect as to whether there is a scientific reason for it or is it purely psychological by nature. If all of us exercise such caution we believe that the malady of blind faith will soon be eradicated by our society. " The appellant further pleaded that the High Court was in error in issuing the order of injunction without giving a reasonable opportunity to it (the producer), which was likely to be affected by the order, to explain that the writ petitioners had no right to move the Court in the circumstances of the case. It can no longer be disputed that the right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India which can be curtailed only under circumstances which are set out in clause (2) of Article 19 of the Constitution of India. The right is similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisement hoardings etc. subject to the terms and conditions of the owners of the media. We hasten to add that what we have observed here does not mean that a citizen has a fundamental right to establish a private boardcasting station, or television center. On this question we reserve our opinion. It has to be decided in an appropriate case. The relevant part of Article 19 of the Constitution reads thus: "19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression; . . . . . . (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or moral 491 ity, or in relation to contempt of court, defamation or incitement to an offence. . . . . . . . . ." Freedom of expression is a preferred right which is always very zealously guarded by this Court. It was not the case of the petitioners in the Writ Petition that the exhibition of serial 'Honi Anhoni ' was in contravention of any specific law or direction issued by the Government. They had not alleged that the Doordarshan had shown any undue favour to the appellant and the sponsoring institutions resulting in any financial loss to the public exchequer. The objection to the exhibition of the film had, however, been raised by them on the basis that it was likely to spread false or blind beliefs amongst the members of the public. They had not asserted any right conferred on them by any statute or acquired by them under a contract which entitled them to secure an order of temporary injunction against which this appeal is filed. The appellant had denied that the exhibition of the serial was likely to affect prejudicially the well being of the people. The Union of India and the Doordarshan have pleaded that the serial was being telecast after following the prescribed procedure and taking necessary precaution. In such a situation, the High Court should not have immediately proceeded to pass the interim orde of injunction. It was no doubt true that the 12th episode was to be telecast on 14th April, 1988 and the 13th episode was to be telecast on 21st April, 1988. If the petitioners in the writ petition had felt, as they had alleged in the course of the petition, that all the episodes in the serial were offensive they could have approached the High Court as early as possible within the first two or three weeks after the commencement of the exhibition of the serial. But they waited till the exhibition of the 11th episode of the serial was over and filed the petition only in the second week of April, 1988. They had not produced any material apart from their own statements to show that the exhibition of the serial was prima facie prejudicial to the community. The High Court overlooked that the issue of an order of interim injunction in this case would infringe a fundamental right of the producer of the serial. In the absence of any prima facie evidence of grave prejudice that was likely to be caused to the public generally by the exhibition of the serial it was not just and proper to issue an order of temporary injunction. We are not satisfied that the exhibition of the serial in question was likely to endanger public morality. In the circumstances of the case the balance of convenience lay in favour of 492 the rejection of the prayer for interim injunction. What we have stated here is sufficient to dispose of this appeal. The other questions of law which may arise in a case of this nature will have to be dealt with in an appropriate case. We express no opinion on those questions in this case. We are, however, of the opinion that the High Court was in error in the present case in issuing the interim order of injunction against which this appeal is filed. We, therefore, allow this appeal and set aside the interim order of injunction passed by the High Court on the 13th of April, 1988. There is, however, no order as to costs. G.N. Appeal allowed.

The T.V. Serial 'Honi Anhoni ' was being telecast by Doordarshan on every Thursday between 9.00 P.M. and 9.30 P.M. A writ petition was filed by the Respondents stating that the telecast was not in public interest as it had the effect of confirming blind faiths, superstitious beliefs in stories of ghosts, rebirth, precognition etc. and of spreading the unscientific way of thinking and blind beliefs. The High Court issued an interim order of injunction not to telecast and show episodes 12 and 13 of the serial. Aggrieved by the interim order, the appellant, producer of the said serial, had come on appeal by special leave. This Court, while granting special leave stayed the operation of the interim order passed by the High Court. The appellant contended that the said serial and in particular episodes 12 and 13 did not emphasise superstitious beliefs but on the contrary criticised and condemned superstition and blind faith, and at the end of both the episodes a doctor and a professor gave a scientific explanation for the unusual occurrences portrayed therein and considered by people as supernatural phenomenon. It was also submitted that the viewers were told that they should search for scientific reason whenever any unusual occurrence takes place. Allowing the appeal, 487 ^ HELD:1. Freedom of expression is a preferred right which is always very zealously guarded by this Court. It can no longer be disputed that the right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India which can be curtailed only under circumstances which are set out in clause (2) of Article 19 of the Constitution of India. The right is similar to the right of a citizen to publish his views through any other media such as newspaper, magazines, advertisement hoardings etc. subject to the terms and conditions of the owners of the media. [491B; 490C E] 2. The High Court was in error in the present case in issuing the interim order of injunction which is set aside. [492B] 3.1 The objection to the exhibition of the film was that it was likely to spread false or blind beliefs amongst the members of the public. The Respondents had not asserted any right conferred on them by any statute or acquired by them under a contract which entitled them to secure an order of temporary injunction. [491C D] 3.2 As alleged by the Respondents, if all the episodes in the serial were offensive they could have approached the High Court as early as possible within the first two or three weeks after the commencement of the exhibition of the serial. But they waited till the exhibition of the 11th episode of the serial was over and then filed the petition. They had not produced any material apart from their own statements to show that the exhibition of the serial was prima facie prejudicial to the community. [491E G] 3.3 The High Court overlooked that the issue of an order of interim injunction in this case could infringe a fundamental right of the producer of the serial. In the absence of any prima facie evidence of grave prejudice that was likely to be caused to the public generally by the exhibition of the serial it was not just and proper to issue an order of temporary injunction. The exhibition of the serial in question was not likely to endanger public morality. In the circumstances of the case the balance of convenience lay in favour of the rejection of the prayer for interim injunction. [491G H; 492A] [This Court reserved its opinion on the question whether a citizen has a fundamental right to establish a private broadcasting station, or television centre, to be decided in an appropriate case.] [490E] 488

N: Criminal Appeal No. 114 of 1979 From the Judgment and order dated the 28th March 1978 of the Delhi High Court in Criminal Misc. No. 399/78. Randhir Jain Appellant. The order of the Court was delivered by CHANDRACHUD, C.J. As long back as on August 1,1975 a Food Inspector purchased a sample of suji (Semolina) from the respondent accused, which was found to contain excessive moisture and ash. The learned Metropolitan Magistrate, Delhi acquitted the accused by his judgment dated July 19, 1977 on the ground that the Food Inspector did not send the required quantity of the adulterated article to the Public Analyst for analysis. The Rules required the i the Food Inspector to send 250 gms. Of suji for analysis, whereas he sent only 200 gms. The High Court of Delhi dismissed the revision application filed by the Municipal Corporation of Delhi summarily. The learned Metropolitan Magistrate is clearly wrong in the view taken by him, from which it must follow that the High Court was not justified in dismissing the revision application summarily. The fact that a lesser quantity than that prescribed by the Rules is sent for analysis cannot constitute an impediment in the conviction of a person accused of selling adulterated food, so long as the quantity sent for analysis is sufficient to enable the Analyst to make a satisfactory analysis according to accepted tests. We do not, how ever, propose to interfere with the order of acquittal since, this appeal was filed not so much for the purpose of securing the conviction of the accused but for the purpose of obtaining a decision from this Court on the question whether a conviction could be recorded under section 7 read with section 16 of the Prevention of Food Adulteration Act even if, a quantity smaller than that required by the Rules to be sent for analysis is sent for the purpose of analysis to the Public Analyst. That question was decided long 286 back in State of Kerala vs Alaserry Mohammed.(l) Therefore, though the view taken by the courts below is unsupportable, we do not propose to interfere with the ultimate order passed by them. The appeal is accordingly dismissed.

Prevention of Food Adulteration Rules requires the Food Inspector to send 250 gms of suji (semolina) for analysis. On August 1, 1975 a Food Inspector purchased a sample of 200 gms of suji from the respondent accused and sent the same to the Public Analyst for analysis. Though the report indicated that the sample was found to contain excessive moisture and ash, the Metro politan Magistrate, Delhi acquitted the accused by his judgment dated July 19, 1977 on the ground that the Food Inspector did not send the required quantity of the adulterated article for analysis. The High Court of Delhi dismissed the revision application filed by the Municipal Corporation. Hence the appeal by special leave. Dismissing the appeal, the Court, ^ HELD: The fact that a lesser quantity than that prescribed by the Rules is sent for analysis cannot constitute an impediment in the conviction of a person accused of selling adulterated food, so long as the quantity sent for analysis is sufficient to enable the Analyst to make a satisfactory analysis according to accepted tests. Therefore, a conviction could be recorded under section 7 read with section 16 of the Prevention of Food Adulteration Act. [285F G] State of Kerala V. Alaserry Mohammed followed.

72 of 1950. Petition under article 32 of the Constitution of India for a writ of mandamus. V.K.T. Chari, J.S. Dawdo, Alladi Kuppuswami, and C.R. Pattabhi Raman, for the petitioner. M.C. Setalvad, Attorney General for India (G. N. Joshi with him) for opposite party Nos. 1 and 2. G.N. Joshi, for opposite party Nos. 3 to 5 and 7 to 10. 1950. December 4. The Court delivered Judgment as follows. KANIA C.J. This is an application by the holder of one ordinary share of the Sholapur Spinning and Weaving Company Ltd. for a writ of mandamus and certain other reliefs under article 32 of the Constitution of India. The authorized capital of the company is Rs. 48 lakhs and the paid up capital is Rs. 32 lakhs, half of which is made up of fully paid ordinary shares of Rs. 1,000 each. 875 I have read the judgment prepared by Mr. Justice Mukher jea. In respect of the arguments advanced to challenge the validity of the impugned Act under articles 31 and 19 of the Constitution of India, I agree with his line of reasoning and conclusion and have nothing more to add. On the question whether the impugned Act infringes article 14, two points have to be considered. The first is whether one individual shareholder can, under the circum stances of the case and particularly when one of the re spondents is the company which opposes the petition, chal lenge the validity of the Act on the ground that it is a piece of discriminatory legislation, creates inequality before the law and violates the principle of equal protec tion of the laws under article 14 of the Constitution of India. The second is whether in fact the petitioner has shown that the Act runs contrary to article 14 of the Con stitution. In this case having regard to my conclusion on the second point, I do not think it is necessary to pro nounce a definite opinion on the first point. I agree with the line of reasoning and the conclusion of Mr. Justice Mukherjea as regards the second point relating to the inva lidity of the Act on the ground that it infringes article 14 of the Constitution and have nothing more to add. In my opinion therefore this petition fails and is dismissed with costs. FAZL ALI J. I am strongly of the opinion that this peti tion should be dismissed with costs. The facts urged in the petition and the points raised on behalf of the petitioner before us are fully set forth in the judgments of my brethren, Sastri, Mukherjea and Das JJ., and I do not wish to repeat them here. It is sufficient to say that the main grounds on which the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950), which will hereinafter be referred to as "the Act", has been assailed, is that it infringes three fundamental rights, these being: 876 (1) the right to property secured by article 31 of the Constitution; (2) the right to acquire, hold and dispose of property, guaranteed to every citizen by article 19 (1) (f); and (3) the right to equal protection of the laws, guaran teed by article 14. It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Hughes J. in McCabe vs Atchison(1), in these words : "It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainant 's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant not to others which justifies judicial interference. " On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights. The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensa tion or the right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so. In this view, the only question which has to be answered is whether the peti tioner has succeeded in showing that there has been an infringement of his rights as a shareholder under articles 31 and 19 (1) (f) of the Constitution. This question has been so elaborately dealt with by Mukherjea J., that I do not wish to add anything to what he has said in his judg ment, and all that is necessary for me to say is that I adopt his conclusions, (1) 235 u.s. 151. 877 without committing myself to the acceptance of all his reasonings. The only serious point, which in my opinion, arises in the case is whether article 14 of the Constitution is in any way infringed by the impugned Act. This article corresponds to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States of America, which declares that "no State shall deny to any person within its jurisdiction the equal protection of the laws". Professor Willis dealing with this clause sums up the law as prevail ing in the United States in regard to it in these words: "Meaning and effect of the guaranty The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and condi tions both in the privileges conferred and in the liabili ties imposed. ' 'The inhibition of the amendment . was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation '. It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."( ') Having summed up the law in this way, the same learned author adds : "Many different classifications (1) Constitutional Law by Prof. Willis, (1st Edition). p.579. 878 of persons have been upheld as constitutional. A law apply ing to one person or one class of persons is constitutional if there is sufficient basis or reason for it. " There can be no doubt that article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while ac cepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, 1 wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. The petitioner 's case is that the shareholders of the Sholapur company have been subjected to discrimination visa vis the shareholders of other companies, inasmuch as section 13 of the Act subjects them to the following disabilities which the shareholders of other companies governed by the Indian Companies Act are not subject to: : "(a) It shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company. (b) No resolution passed at any meeting of the share holders of the company shall be given effect to unless approved by the Central Government. (c) No proceeding for the winding up of the company or for the appointment of a receiver in respect thereof shall lie in any court unless by or with the sanction of the Central Government. " Primafacie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind : (1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applica ble to others, 879 that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton vs Texas Power and Light Company(1), in which the relevant passage runs as follows : "It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. " The onus is therefore on the petitioner to show that the legislation which is impugned is arbitrary and unreasonable and there are other companies in the country which should have been subjected to the same disabilities, because the reasons which led the Legislature to impose State control upon the Sholapur company are equally applicable to them. So far as article 14 is concerned, the case of the share holders is dependent upon the case of the company and if it could be held that the company has been legitimately sub jected to such control as the Act provides without violation of the article, that would be a complete answer to the petitioner 's complaint. Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred, and we are merely asked to presume that there must necessarily be other compa nies also which would be open to the charge of mismanagement and negligence. The question cannot in my opinion be treated so lightly. On the other hand, how important the doctrine of burden of proof is and how much harm can be caused by ignor ing it or tinkering with it, will be fully illustrated, by referring to the proceedings in the Parliament in connec tion with the enactment of the (1) ,157. 880 Act, where the circumstances which necessitated it are clearly set out. I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitat ed it. A reference to the Parliamentary proceedings shows that some time ago, a representation was made on behalf of a section of the shareholders of the Sholapur company to the Registrar of Joint Stock Companies in Bombay, against the conduct of the managing agents, and the Government of Bombay was moved to order a special inquiry into the affairs of the company. For the purpose of this inquiry, two special inspectors were appointed by the Bombay Government and their report revealed "certain astounding facts" and showed that the mill had been grossly mismanaged by the Board of Direc tors and the managing agents. It also revealed that the persons who were responsible for the mismanagement were guilty of certain acts and omissions which brought them under the purview of the law. The Bombay Government accept ed the report of the inspectors and instructed the Advocate General of Bombay to take legal proceedings against certain persons connected with the management of the company. Thereafter, the Government of India was approached by the Provincial Government and requiested to take special action in order to secure the early opening of the mill. The Government of India found that they had no power to take over the management of a particular mill, unless its working could be ensured through the existing management acting under the direction of a Controller appointed under the Essential Supplies Act, but they also found that a peculiar situation had been created in this case by the managing agents themselves being unable or unwilling to conduct the affairs of the company in a satisfactory and efficient manner. The Government of India, as a matter of precaution and lest it should be said that they were going to interfere unnecessarily in the affairs 881 of the company and were not allowing the existing provisions of the law to take their own course, consulted other inter ests and placed the matter before the Standing Committee of the Industrial Advisory Council where a large number of leading industrialists of the country were present, and ultimately it was realized that this was a case where the Government could rightly and properly intervene and there would be no occasion for any criticism coming from any quarter. It appears from the discussion on the floor of the House that the total number of weaving and spinning mills which were closed down for one reason or other was about 35 in number. Some of them are said to have closed for want of cotton, some due to overstocks, some for want o[ capital and some on account of mismanagement. The Minister for Indus try, who sponsored the Bill, in explaining what distin guished the case of the Sholapur mill from the other mills against whom there might be charges of mismanagement, made it clear in the course of the debate that "certain condi tions had to be fulfilled before the Government can and should intervene", and he set out these conditions as fol lows : "(1) The undertaking must relate to an industry which is of national importance. Not each and every undertaking which may have to close down can be taken charge of tempo rarily by Government. (2) The undertaking must be an economic unit. If it appears that it is completely uneconomic and cannot be managed at all, there is no sense in Government taking charge of it. If anything, it will mean the Government will have to waste money which belongs to the taxpayer on an uneconomic unit. (3) There must be a technical report as regards the condition of the plants, machinery, etc. which either as they stand, or after necessary repairs and reconditioning can be properly utilised. (4) Lastly, and this is of considerable importance there must be a proper enquiry held before Government take any action. The enquiry should show that 113 882 managing agents have so misbehaved that they are no longer fit and proper persons to remain in charge of such an impor tant undertaking. "(1) It appears from the same proceedings that the Sholapur mill is one of the largest mills in Asia and employs 13,000 workers. Per shift, it is capable of producing 25 to 30 thousand pounds of yarn, and also one lakh yards of cloth. It was working two shifts when it was closed down on the 29th August, 1949. The closure of the mill meant a loss of 25 lakhs yards of cloth and one and a half lakhs pounds of yarn per month. Prior to 1947, the highest dividend paid by the company was Rs. 525 per share and the lowest Rs. 100, and, in 1948, when the management was taken over by the managing agents who have been removed by the impugned Act, the accounts showed a loss of Rs. 30 lakhs, while other textile companies had been able to show very substantial profits during the same period. Another fact which is brought out in the proceedings is that the. managing agents had acquired control over the majority of the shares of the company and a large number of shareholders who were dissatisfied with the management had been rendered powerless and they could not make their voice heard. By reason of the preponderance of their strength, the managing agents made it impossible for a controller under the Essential Supplies Act to function and they also made it difficult for the company to run smoothly under the normal law. It was against this background that the Act was passed, and it is evident that the facts which were placed before the Legislature with regard to the Sholaput mill were of an extraordinary character. and fully justified the company being treated as a class by itself. There were undoubtedly other mills which were open to the charge of mismanagement, but the criteria adopted by the Government which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable (1) parliamentary Debates, Volume III, No. 14; 31st March 1950, pp.2394 5 883 to any of them. As we have seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no drastic step such as is envisaged in the Act should be taken without there being a complete enquiry. In the case of the Sholapur mill, a complete enquiry had been made and the revelations which were made as a result of such enquiry were startling. We are familiar with the expression "police power" which is in vogue in the United States of America. This expression simply denotes that in special cases the State can step in where its intervention seems necessary and impose special burdens for general benefit. As one of the judges has pointed out, "the regulations may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. "(1) It need not be emphasized that the principles underlying what is known as police power in the United States of America are not peculiar to that country, but are recognized in every modern civilized State. Professor Willis dealing with the question of classification in exercise of police power makes the following observa tions: "There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing this the Courts may consider matters of common knowledge, matters o[ common report, tile history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time Of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such (1) Per Field J. in Barbier vs Connally. ; 884 proof it must be shown that there is no reasonable basis for the classification. " In this particular case, the Government initially took control of the Sholapur Company by means of an Ordinance (Ordinance No. II of 1950), of which the preamble runs as follows : "Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially af fected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community; And whereas an emergency has arisen which renders it necessary to make special provision for the proper manage ment and administration of the aforesaid Company; Now, therefore,. . . . " In the course of the Parliamentary debate, reference was made to the fact that the country was facing an acute cloth shortage, and one of the reasons which apparently influenced the promulgation of the Ordinance and the passing of the Act was that the mismanagement of the company had gravely affected the production of an essential commodity. The facts relating to the mismanagement of this mill were care fully collected and the mischief caused by the sudden clos ing of the mill to the shareholders as well as to the gener al public were fully taken into consideration. Therefore, it seems to me that to say that one particular mill has been arbitrarily and unreasonably selected and subjected to discriminatory treatment, would be an entirely wrong propo sition. Article 14 of the Constitution, as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire approach which might choke all benefi cial legislation. The facts to which I have referred are to be found in a public document, and, though some of them may (1) Constitutional Law by Prof. Willis (1st Edition) p. 580. 885 require further investigation forming as they do part of a one sided version, yet they furnish good prima, facie grounds for the exercise of the utmost caution in deciding this case and for not departing from the ordinary rule as to the burden of proof. In the last resort, this petition can be disposed of on the simple ground that the petitioner has not discharged the onus which lies upon him, and I am quite prepared to rest my judgment on this ground alone. I think that the petitioner has failed to make out any case for granting the writs or directions asked for, and the petition should therefore be dismissed with costs. PATANJALI SASTRI J. This is an application under article 32 of the Constitution seeking relief against alleged infringe ment of certain fundamental rights of the petitioner. The petitioner is a shareholder of the Sholapur Spinning and Weaving Company, Limited, Sholapur, in tim State of Bombay, (hereinafter referred to as "the Company "). The authorised share capital of the Company consisted of 1590 fully paid up ordinary shares of Rs. 1,000 each, 20 fully paid up ordinary shares of Rs. 500 each and :32,000 partly paid up redeemable cumulative preference shares of Rs. 100 each, of which Rs. 50 only was paid up. Of these, the petitioner held one ordinary share in his own name and 80 preference shares which, however, having been pledged with the Bank of Baroda Ltd., now stand registered in the Bank 's name. The company was doing flourishing business till disputes arose recently between the management and the employees, and in or about August, 1949, the mills were temporarily closed and the company, which was one of the largest producers of cotton textiles, ceased production. Thereupon, the Gover nor General intervened by promulgating on the 9th January, 1950, an Ordinance called the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (No. II ' of 1950), which empowered tim Government of India to 886 take over the control and management of the company and its properties and effects by appointing their own Directors and to delegate all or any of their powers to the Provincial Government. In exercise of the powers thus delegated, the Government of Bombay appointed respondents 3 to 9 as Direc tors to take charge of the management and administration of the properties and affairs of the company. Subsequently, on 10th April, '1950, the Ordinance was repealed and was re placed by an Act of Parliament containing similar provisons, namely the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (No. XXVIII of 1950) (hereinafter referred to as the "impugned Act"). The petitioner complains that the impugned Act and the action of the Government of Bombay pursuant thereto have infringed the fundamental rights conferred on him by arti cles 11, 19 and 31 of the Constitution with the result that the enactment is unconstitutional and void, and the inter ference by the Government in the affairs of the company is unauthorised and illegal. He accordingly seeks relief by way of injunction and mandamus against the Union of India and the State of Bombay impfended as respondents 1 and 2 respec tively in these proceedings and against respondents a to 9 who are now in management as already stated. The company is irapleaded proforma as the 10th respondent. Before discussing the issues involved, it is necessary to examine the relevant provisions of the impugned Act in order to see in what manner and to what extent the petition er 's rights have been affected thereby. The preamble to the repealed Ordinance stated that "on account of mis management and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially affected the production of an essen tial commodity and has caused serious unemployment amongst a certain section of the community and that an emergency has arisen which renders it necessary to make special provi sion for the proper management and administration of the aforesaid 887 Company." This preamble was not reproduced in the impugned Act. Section a empowers the Central Government to appoint as many persons as it thinks fit to be directors of the company "for the purpose of taking over its management and administration. " Section 4 states the effect of the order appointing directors to be that (1) the old directors shall be deemed to have vacated their office, (2) the contract with the managing agents shall be deemed to have been termi nated, (3) that the properties and effects of the company shall be deemed to be in the custody of the new directors who are to be "for all purposes" the directors of the compa ny and "shall alone be entitled to exercise all the powers of the directors of the company whether such powers are derived from the Companies Act or from the memorandum or articles of association or otherwise. " Section 5 defines the powers of the new directors. They are to manage the busi ness of the company "subject to the control of the Central Government" and shall have the power to raise funds offering such security as they think fit, to carry out necessary repairs to the machinery or other property in their custody and to employ the necessary persons and define the necessary conditions of their service. Section 12 provides for the restoration of the management to directors nominated by the shareholders when the purpose of the Government 's interven tion has been fulfilled. Section 13 is important and reads thus: "13. Application of the Companies Act. (1) Notwith standing anything contained in the Companies Act or in the memorandum or articles of association of the company (a) it shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of the company shall 'be given effect to unless approved by the Central Government; (c) no proceeding for the winding up of the company or for the appointment of a receiver in respect, thereof shall lie in any Court unless by or with the sanction of the Central Government. (2) Subject. 888 to the provisions contained in sub section (1) and to the other provisions of this Act. and subject to such excep tions, restrictions and limitations as the Central Govern ment may, by notified order, specify, the Companies Act shall continue to apply to the company in the same manner as it applied thereto before the issue of the notified order under section 3. " By section 14 the provisions of the Act are to have effect "notwithstanding anything inconsistent therewith contained in any other law or in any instrument having effect by virtue of any law other than this Act. " Section 16 provides for delegation of powers to the Govern ment of Bombay to be exercised subject to the directions of the Central Government, and section 17 bars suits or other proceedings against the Central Government or the Government of Bombay or any director "for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act. " As a result of these provisions all the properties and effects of the company passed into the absolute power and control of the Central Government or its delegate the Gov ernment of Bombay, and the normal functioning of the company as a corporate body came to an end. The shareholders have been reduced to the position of interested, if helpless, onlookers while the business is carried on against their will and, may be, to their disadvantage by the Government 's nominees. The declared purpose of this arrangement was, according to the Preamble of the repeated Ordinance to keep up the production of an essential commodity and to avert serious unemployment amongst a certain section of the commu nity. The question accordingly arises whether the impugned Act. which thus affects the petitioner and his co sharehold ers, while leaving untouched the shareholders of all other companies, including those engaged in the production of essential commodities, denies to the petitioner the equal protection of the laws under article 14 of the Constitution. The correct approach to 889 this question is first to see what rights have been con ferred or protection extended to persons similarly situated. The relevant protection is to be found in the provisions of the Indian Companies Act which regulates the rights and obligations of the shareholders of incorporated companies in India. Section 21 of the Act assures to the shareholders the protection of the stipulations contained in the memoran dum and articles of association by constituting. them a binding contract, so that neither the company nor the share holders have the power of doing anything inconsistent there with. The basic right of the shareholders to have their undertaking managed and conducted by the directors of their own choice is ensured by section 83B. Their right to exer cise control and supervision over the management by the directors by passing resolutions at their general meeting is regulated by various provisions of the Act. The important safeguard of winding up the company in certain unfavourable circumstances either through court or by the shareholders thems elves voluntarily is provided for in sections 162 and 203. All these rights and safeguards, on the faith of which the shareholders embark their money in their undertaking, are abrogated by the impugned Act in the case of the share holders of this company alone. In fact, the Central Govern ment is empowered to exclude, restrict or limit the opera tion of any of the provisions of the Companies Act in rela tion to this company. It is thus plain that the impugned Act denies to the shareholders of this particular company the protection of the law relating to incorporated joint stock companies in this country is embodied in the Companies Act and is primafacie within the inhibition of article 14. It is argued, however, that article 14 does not make it incumbent on the Legislature always to make laws applicable to all persons generally, and that it is open to the Legis lature 'to classify persons and things and subject them to the operation of a particular law according to the aims and objects which that law is designed to secure. In the present case, Parliament, 114 890 it was said, came to the conclusion, on the materials placed before them, that the affairs of the company were being grossly mismanaged so as to result in the cessation of production of an essential commodity and serious unemploy ment amongst a section of the community. In view if the detriment thus caused to public economy, it was competent for Parliament to enact a measure applicable to this company and its shareholders alone, and Parliament must be the judge as to whether the evil which the impugned Act was designed to remedy prevailed to such an extent in this company as to call for special legislation. Reliance was placed in support of this argument on certain American decisions dealing with the equal protection clause of the Fourteenth Amendment of the Federal Constitution. It is, however, unnecessary to discuss those decisions here, for it is undeniable that equal protection of the laws cannot mean that all laws must be quite general in their character and application. ' A legislature empowered to make laws on a wide range of sub jects must of necessity have the power of making special laws to attain particular objects and must, for that pur pose, possess large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the legis lature has in view. While, for instance, a classification in a law regulating labour in mines or factories may be based on age or sex, it may not b`e based on the colour of one 's skin. It is also true that the class of persons to whom a law is made applicable may be large or small, and the degree of harm which has prompted the enactment of a particular law is a matter within the discretion of the law makers. It is not the province of the court to canvass the legislative judgment in such matters. But the issue here is not whether the impugned Act was ill advised or not justified by the facts on which it was based, but whether it transgresses the explicit constitutional restriction on legislative power imposed by article 14. 891 It is obvious that the legislation is directed solely against a particular company and shareholders and not against any class or category of companies and no question, therefore, of reasonable legislative classification arises. If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing. For instance, a law may be passed imposing certain restric tions and burdens on joint stock companies with a share capital of, say, Rs. 10 crores and upwards, and it may be found that there is only one such company for the time being to which the law could be applied. If other such companies are brought into existence in future the law would apply to them also, and no discrimination would thus be involved. But the impugned Act, which selects this particular company and imposes upon it and its shareholders burdens and disa bilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its under taking, is plainly discriminatory in character and is, in my judgment, within the constitutional inhibition of article 14. Legislation based upon mismanagement or other miscon duct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think, receive judi cial encouragement. It was next urged that the burden of proving that the impugned Act is unconstitutional lay on the petitioner, and that, inasmuch as he has failed to adduce any evidence to show that the selection of this company and its shareholders for special treatment under the impugned Act was arbitrary, the application must fail. Whilst all reasonable pre sumption must undoubtedly be made in support of the consti tutional validity of a law made by a competent legislature, the circumstances of the present case would seem, to my 892 mind to exclude such presumption. Hostile discrimination is writ large over the face of the impugned Act and it dis closes no grounds for such legislative intcrvcntion. For all that appears no compelling public intercsts were involved. Even the preamble to the original Ordinance was omitted. Nor did respondents 1 and 2 file any counter statement in this proceeding explaining the circumstances which led to the enactment of such an extraordinary measure. There is thus nothing in the record even by way of allegation which the petitioner need take steps to rebut. Supposing, howev er, that the impugned Act was passed on the same grounds as were mentioned in the preamble to the repealed Ordinance, namely, mismanagement and neglect prejudicially affecting the production of an essential commodity and causing seri ous unemployment amongst a section of the community, the petitioner could hardly be expected to assume the burden of showing, not that the company 's affairs were properly man aged, for that is not his case, but that there were also other companies similarly mismanaged, for that is what, according to the respondents, he should prove in order to rebut the presumption of constitutionality. In other words, he should be called upon to establish that this company and its shareholders were arbitrarily singled out for the impo sition of the statutory disabilities. How could the peti tioner discharge such a burden ? Was he to ask for an inves tigation by the Court of the affairs of other industrial concerns in India where also there were strikes and lock outs resulting in unemployment and cessation of production of essential commodities? Would these companies be willing to submit to such an investigation ? And even so, how is it possible to prove that the mismanagement and neglect which is said to have prompted the legislation in regard to this company was prevalent in the same degree in other companies ? In such circumstances, to cast upon the petitioner a burden of proof which it is as needless for him to assume as it is impracticable to discharge is to lose sight of the realities of the case. 893 Lastly, it was argued that the constitutionality of a statute could not be impugned under article 32 except by a person whose rights were infringed by the enactment. and that, inasmuch as there was no infringement of the individ ual right of a shareholder, even assuming that there was an injury to the company as a corporate body, the petitioner was not entitled to apply for relief under that article. Whatever validity the argument may have in relation to the petitioner 's claim based on the alleged invasion of his right of property under article 31, there can be little doubt that, so far as his claim based on the contravention of article 14 is concerned, the petitioner is entitled to relief in his own right As has been pointed out already, the impugned Act deprives the shareholders of the company of important rights and safeguards which are enjoyed by the shareholders of other joint stock companies in Indian under the Indian Companies Act. The petitioner is thus denied the equal protection of the laws in his capacity as a sharehold er, and none the less so because the other shareholders of the company are also similarly affected. The petitioner is thereled to seek relief under article 32 of the Constitu tion. In this view it becomes unnecessary to consider the questions raised under articles 19 and 31 of the Constitu tion. In the result]t, I would allow the application. MUKHERJEA J. This is an application presented by one Chiranjitlal Chowdhuri, a shareholder of the Sholapur Spinning and Weaving Company Limited (hereinafter referred to as the company), praying for a writ of mandamus and certain other reliefs under article 32 of the Constitution. The company, which has its registered office within the State of Bombay and is governed by the provisions of the Indian Companies Act, was incorporated with an authorised capital of Rs. 48 lakhs divided into 1590, fully paid up ordinary shares of Rs. 100 each, 20 fully paid up ordinary shares of Rs. 500 each and 32,000 partly paid up cumulative preference shares of Rs. 100 each. The 894 present paid up capital of the company is Rs. 32 lakhs half of which is represented by the fully paid up ordinary shares and the other half by the partly paid up cumulative prefer ence shares. The petitioner states in his petition that he holds in his own right three ordinary shares and eighty prefercnce shares in the company, though according to his own admission the ,preference shares do not stand in his name but have been registered in the name of the Baroda Bank Limited with which the shares are pledged. According to the respondents, the petitioner is the registered holder of one single ordinary share in the company. It appears that on July 27, 1949, the directors of the company gave a notice to the workers that the mills would be closed, and pursuant to that notice, the mills were in fact closed on the 27th of August following. On January 9, 1950, the Governor General of India promulgated an Ordinance which purported to make special provisions for the proper man agement and administration of the company. It was stated in the preamble to the Ordinance that "on account of mis management and neglect, a situation has arisen in the af fairs of the Sholapur Spinning and Weaving Company Limited which has prejudicially affected the production of an essen tial commodity and has caused serious unemployment amongst a certain section of the community ", and it was on account of the emergency arising from this situation that the promulga tion of the Ordinance was necessary. The provisions of the Ordinance, so far as they are material for our present purpose, may be summarised as follows: Under section 3 of the Ordinance, the Central Government may, at any time, by notified order, appoint as many persons as it thinks fit, to be directors of the company for the purpose of taking over its management and administration and may appoint one of such directors to be the Chairman. Section 4 provides that on the issue of a notified order under section 3 all the directors of the company holding office as such immediately before the issue of the order shall be deemed to have vacated their offices. and any existing 895 contract of management between the company and any managing agent thereof shall be deemed to have terminated. The directors thus appointed shall be for all purposes the directors of the company duly constituted under the Compa nies Act and shall alone be entitled to exercise all the powers of the directors of the company. The powers and the duties of the directors are specified in section 5 and this section inter alia empowers the directors to vary or cancel, with the previous sanction of the Central Government, any contract or agreement entered into between the company and any other person if they are satisfied that such contract or agreement is detrimental to the interests of the company. Section 10 lays down that no compensation for premature termination of any contract could be claimed by the managing agent or any other contracting party. It is provided by section 12 that so long as the management by the statutory directors continues, the shareholders would be precluded from nominating or appointing any person to be a director of the company and any resolution passed by them will not be effective unless it is approved by the Central Government. This section lays down further that during this period no proceeding for winding up of the company, or for appointment of a receiver in respect thereof could be instituted in any court, unless it is sanctioned by the Central Government, and the Central Government would be competent to impose any restrictions or limitations as regards application of the provisions of the Indian Companies Act to, be affairs of the company. The only other material provision is that contained in section 15, under which the Central Government may, by notified order, direct that all or any of the powers exercisable by it under this Ordinance may be exercised by the Government of Bombay. In accordance with the provisions of section 15 men tioned above, the Central Government, by notification issued on the same day that the Ordinance was promulgated, delegat ed all its powers exercisable under the Ordinance to the Government of Bombay, 896 On the next day, the Government of Bombay appointed respond ents 3 to 7 as directors of the company in terms of section 3 of the Ordinance. On the 2nd of March, 1950, the re spondent No. 9 was appointed a director and respondent No. 5 having resigned his office in the meantime, the re spondent No. 8 was appointed in his place. On the 7th of April, 1950, the Ordinance was repealed and an Act was passed by the Parliament of India, known as the Sholapur Spinning and Weaving Company (Emergency Provisions)Act which re enacted almost in identical terms all the provisions of the Ordinance and provided further that all actions taken and orders made under the Ordinance shall be deemed to have been taken or made under the corresponding provisions of the Act. The preamble to the Ordinance was not however repro duced in the Act. The petitioner in his petition has challenged the con stitutional validity of both the Ordinance and the Act. As the Ordinance is no longer in force and all its provisions have been incorporated in the Act, it will not be necessary to deal with or refer to the enactments separately. Both the Ordinance and the Act have been attacked on identical grounds and it is only necessary to enumerate briefly what these grounds are. The main ground put forward by the petitioner is that the pith and substance of the enactments is to take posses sion of and control over the mills of the company which are its valuable assets and such taking of possession of proper ty is entirely beyond the powers of the Legislature. 'The provisions of the Act, it is said, amount to deprivation of property of the shareholders as well as of the company within the meaning of article 31 of the Constitution and the restrictions imposed on the rights of the shareholders in respect to the shares held by them constitute an unjustifia ble interference with their rights to hold property and as such are void under article 19 (1) (f). It is urged that there was no public purpose for which the Legislature could authorise the taking possession or acquisition of 897 property and such acquisition or taking of possession with out payment of compensation is in violation of the funda mental rights guaranteed by article 31 (2) of the Constitu tion. It is said further that the enactment denies to the company and its shareholders equality before the law. and equal protection of laws and thus offends against the provi sions of article 14 of the Constitution. The only other material point raised is that the legislation is beyond the legislative competency of the Parliament and is not covered by any of the items in the legislative lists. On these allegations, the petitioner prays, in the first instance. that it may be declared that both the Act and the Ordinance are ultra vires and void and an injunction may be issued restraining the respondents from exercising any of the powers conferred upon them by the enactments. The third and the material prayer is for issuing a writ of mandamus, "restraining the respondents 1 to 9 from exercising or purporting to exercise any powers under the said Ordinance or Act and from in any manner interfering with the manage ment or affairs of the company under colour of or any pur ported exercise of any powers under the Ordinance or the Act," The other prayers are not material for our purpose. Before I address myself to the merits of this applica tion it will be necessary to clear up two preliminary matters in respect to which arguments were advanced at some length from the Bar. The first point relates to the scope of our enquiry in the present case and raises the question as to what precisely are the matters that have to be inves tigated and determined on this application of the petition er. The second point relates to the form of relief that can be prayed for and granted in a case of this description. Article 32 (1) of the Constitution guarantees to every body the right to move this court, by appropriate proceed ing, for enforcement of the fundamental rights which are enumerated in Part 1II of the Constitution. Clause (2) of the article lays down that the 115 898 Supreme Court shall have the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part. Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this court has been given the power to make orders and issuue directions or writs similar in nature to the prerogative writs of English law as might be considered appropriate in particular cases. The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons. An incorporated company, there fore, can come up to this court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the funda mental rights of the company except to the extent that it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members. As the rights are different and inhere in different legal entities, it is not competent to one person to seek to enforce the rights of another except where the law permits him to do so. A well known illustra tion of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus. Not only the man who is imprisoned or detained in confine ment but any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment. 899 The application before us under article 32 of the Con stitution is on behalf of an individual shareholder of the company. Article 32, as its provisions show,. is not di rectly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitu tion, of which he could seek enforcement by an appropriate writ or order. The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains I of infraction of such rights and approaches the court for relief. This being the position, the proper subject of our investigation would be what rights, if any, of the petitioner as a shareholder of the company have been violated by the impugned legislation. A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry. It is settled law that in order to redress a wrong done to the company, the action should prima facie be brought by the company itself. It cannot be said that this course is not possible in the circumstances of the present case. As the law is alleged to be unconstitutional, it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law, and on that footing the majority of shareholders can also assert 'the rights of the company as such. None of them, however, have come forward to institute any proceeding on behalf of the compa ny. Neither in form nor in substance does the present application purport to be one made by the company itself. Indeed, the company 900 is one of the respondents, and opposes the petition. As regards the other point, it would appear from the language of article 32 of the Constitution that. the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this article cannot really have any affinity to what is known as a declaratory suit. The first prayer made in the petition, n seeks relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an application under article 32; while the second purports to be framed for a relief by way of injunc tion consequent upon the first. As regards the third pray er, it has been contended by Mr. Joshi, who appears for one of the respondents, that having regard to the nature of the case and the allegations made by the petitioner himself, the prayer for a writ of mandamus, in the form in which it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law. Assuming that the respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enact ment which the court can be called upon to enforce. These is really not much substance in this argument, for according to the petitioner the impugned Act is not valid at all and consequently the respondents cannot take their stand on this very Act to defeat the application for a writ in the nature of a mandamus. Any way, article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the 901 ground that 'the proper writ or direction has not been prayed for. Proceeding now to the merits of the case, the first contention that has been pressed before us by the learned Counsel for the petitioner is that the effect of the Shola pur Spinning and Weaving Company Limited (Emergency Provi sions) Act, has been to take away from the company and its shareholders, possession of property and other interests in commercial undertaking and vest the same in certain persons who are appointed by the State, and the exercise of whose powers cannot be directed or controlled in any way by the shareholders. As the taking of possession is not for any public purpose and no provision for compensation has been made by the law which authorises it, such law, it is said, violates the fundamental rights guaranteed under article 31 of the Constitution. To appreciate the contention, it would be convenient first of all to advert to the provisions of the first two clauses of article 31 of the Constitution. The first clause of article 31 lays down that "no person shall be deprived of his property save by authority of law" The second clause provides: "No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken posse sion of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. " It is a right inherent in every sovereign to take and appropriate private property belonging to individual citi zens for public use. 'this right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Govern ment that private property acquired by its 902 citizens under its protection may be taken or its use con trolled for public benefit irrespective of the wishes of the owner. Article 31 (2) of the Constitution prescribes a two fold limit within which such superior right of the State should be exercised. One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause. So far as article S1 (2) is concerned, the substantial question for our consideration is whether the impugned legislation authorises any act amounting to acquisition or taking possession of private property within the meaning of the clause. It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31 (,?) of the Constitu tion itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property. In the context in which the word "acquisition" appears in article 31 (2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and I have no hesitation in holding that there is no such acquisition either as regards the property of the company or of the shareholders in the present case. The question, therefore, narrows down to this as to whether the legisla tion in 903 question has authorised the taking of possession of any property or interest belonging to the petitioner. It is argued by the learned Attorney General that the taking of possession as contemplated by article 31 (2) means the taking of possession of the entire bundle of rights which the previous holder had, by excluding him from every part or item thereof. If the original holder is still left to exercise his possession with regard to some of the rights which were within the folds of his title, it would not amount to taking possession of the property for purposes of article 31 (2) of the Constitution. Having laid down this proposition of law, the learned Attorney General has taken us through the various provisions of the impugned Act and the contention advanced by him substantially is that nei ther the company nor the shareholders have been dispossessed from their property by reason of the enactment. As regards the properties of the company, the directors, who have been given the custody of the property, effects and actionable claims of the company, are, it is said, to exercise their powers not in their own right but as agents of the company, whose beneficial interest in all its assets has not been touched or taken away at all. No doubt the affairs of the company are to be managed by a body of directors appointed by the State and not by the company, but this, it is argued, would not amount to taking possession of any property or interest within the meaning of article 31 (2). Mr. Chari on the other hand, has contended on behalf of the petitioner that after the management is taken over by the statutory directors, it cannot be said that the company still retains possession or control over its property and assets. Assuming that this State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company, the possession of the statutory directors could not, it is argued, be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administra tion of its affairs. Possession of an 904 agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not according to the commands or dictates of the principal, but under the direc tion of an exterior authority. There can be no doubt that there is force in this con tention, but as I have indicated at the outset, we are not concerned in this case with the larger question as to how far the inter position of this statutory management and control amounts to taking possession of the property and assets belonging to the company. The point for our consider ation is a short one and that is whether by virtue of the impugned legislation any property or interest of the peti tioner himself, as a shareholder of the company, has been taken possession of by the State or an authority appointed under it, as contemplated by article 31 (2) of the Constitu tion. The petitioner as a shareholder has undoubtedly an interest in the company. His interest is represented by the share he holds and the share is movable property according to the Indian Companies Act with all the incidence of such property attached to it. Ordinarily, he is entitled to enjoy the income arising from the shares in the shape of divi dends; the share like any 'other marketable commodity can be sold or transferred by way of mortgage or pledge. The hold ing of the share in his name gives him the right to vote at the election of directors and thereby take a part, though indirectly, in the management of the company 's affairs. If the majority of shareholders sides with him, he can have a resolution passed which would be binding on the company, and lastly, he can institute proceedings for winding up of the company which may result in a distribution of the net assets among the shareholders. It cannot be disputed that the petitioner has not been dispossessed in any sense of the term of the shares he holds. Nobody has taken the shares away from him. His legal and beneficial interest in respect to the shares he holds is left intact. If the company declares dividend, he would be entitled to the same. He can sell or otherwise dispose of the shares at any 905 time at his option. The impugned Act has affected him in this way that his right of voting at the election of direc tors has been kept in abeyance so long as the management by the statutory director continues; and as a result of that, his right to participate in the management of the company has been abridged to that extent. His rights to pass resolutions or to institute winding up proceedings have also been restricted though they are not wholly gone; these rights can be exercised only with the consent or sanction of the Central Government. In my opinion, from the facts stated above, it cannot be held that the petitioner has been dispossessed from the property owned by him. I may apply the test which Mr. Chari himself formulated. If somebody had taken possession of the petitioner 's shares and was clothed with the authority to exercise all the powers which could be exercised by the holder of the shares under law, then even if he purported to act as the petitioner 's agent and exer cise these powers for his benefit, the possession of such person would not have been the petitioner 's possession if he was bound to act not under the directions of the petitioner or in obedience to his commands but under the directions of some other person or authority. There is no doubt whatsoever that is not the position in the present case. The State has not usurped the shareholders ' right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, not in exercise of the share holders ' right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has been no dispos session of the shareholders from their right of voting at all. The same reasoning applies to the other rights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petition. These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues. Whether the restric tions are such as would bring the case within 116 906 the mischief of article 19 (1) (f) of the Constitution, 1 will examine presently; but 1 have no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders. In the view that I have taken it is not necessary to discuss whether we can accept as sound the contention put forward by the learned Attorney General that the word "property" as used in article 31 of the Constitution con notes the entire property, that is to say the totality of the rights which the ownership of the object connotes. According to Mr. Setalvad, if a shareholder is not deprived of the entirety of his rights which he is entitled to exer cise by reason of his being the owner or holder of the share and some rights, however insignificant they might be, still remain in him, there cannot be any dispossession as contem plated by article 31(2). It is difficult, in my opinion, to accept the contention formulated in such broad terms. The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietory right. It is relevant to refer in this connection to an observation made by Rich J. in a Full Bench decision of the High Court of Australia,(1) where the ques tion arose as to whether the taking of exclusive possession of a property for an indefinite period of time by the Com monwealth of Australia under Reg. 54 of the National Securi ty Regulation amounted to acquisition of property within the meaning of placitum 31, section 51, of the Commonwealth Constitution. The majority of the Full Bench answered the question in the affirmative and the main reason upon which the majority decision was based is thus expressed in the language of Rich J. "Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in (1) See Minister of Stain for the Army vs Dalziel, 68 C L.R. p. 261, 907 the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it was expropriat ing. " It is not, however, necessary for my purpose to pursue the matter any further, as in my opinion there has been no dispossession of the rights of a shareholder in the present case. Mr. Chari in course of his opening relied exclusively on clause (2) of article 31 of the Constitution. During his reply, however, he laid some stress on clause (1) of the article as well, and his contention seems to be that there was deprivation of property in the present case in contra vention of the terms of this clause. It is difficult to see what exactly is the contention of the learned Counsel and in which way it assists him for purposes of the present case. It has been argued by the learned Attorney General that clause (1) of article 31 relates to a power different from that dealt with under clause (2). According to him, what clause (1) contemplates is confiscation or destruction of property in exercise of what are known as 'police powers ' in American law, for which no payment of compensation is neces sary. I do not think it proper for purposes of the present case to enter into a discussion on this somewhat debatable point which has been raised by the learned Attorney General. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution makers and the importing of expressions like 'police power ; which is a term of variable and indefinite connotation in American law can only make the task of interpretation more difficult. It is also not necessary to express any opinion as to wheth er clauses (1) and (2) of article 31 relate to exercise of different kinds of powers or they are to be taken as cumula tive provisions in relation to the same subjectmatter, namely, compulsory acquisition of property. If the word "deprived" as used in clause (1) connotes the idea of de struction or confiscation of property, obviously no such thing has happened in the present 908 case. Again if clauses (1) and (2) of article 31 have to be read together and "deprivation" in clause (1) is given the same meaning as compulsory acquisition in clause (2), clause (1), which speaks neither of compensation nor of public purpose, would not by itself, and apart from clause (2), assist the petitioner in any way. If the two clauses are read disjunctively, the only question that may arise in connection with clause (1) is whether or not the depriva tion of property is authorised by law. Mr. Chari has raised a question relating to the validity of the legislation on the ground of its not being covered by any of the items in the legislative list and to this question I would advert later on; but apart from this, clause (1) of article 31 of the Constitution seems to me to be altogether irrelevant for purposes of the petitioner 's case. This leads me to the consideration of the next point raised by Mr. Chari, namely, whether these restrictions offend against the provision of article 19(1)(f) of the Constitution. Article 19(1) of the Constitution enumerates the dif ferent forms of individual liberty, the protection of which is guaranteed by the Constitution. The remaining clauses of the article prescribe the limits that may be placed upon these liberties by law, so that they may not conflict with public welfare or general morality. Article 19(1)(f) guarantees to all citizens ' the right to acquire, hold or dispose of property. ' Any infringement of this provision would amount to a violation of the fundamental rights, unless it comes within the exceptions provided for in clause (5) of the article. That clause permits the imposition of reasonable restrictions upon the exercise of such righ teither in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Two questions, therefore, arise in this connection: first, whether the restrictions that have been imposed upon the rights of the petitioner as a shareholder in the company under the Sholapur Act amount to infringement of his.right to acquire, hold or dispose of property within the meaning of article 19(1)(f) of the Constitution and 909 secondly, if they do interefere with such rights, whether they are covered by the exceptions 1aid down in clause (5) of the article. So far as the first point is concerned, it is quite clear that there is no restriction whatsoever upon the petitioner 's right to acquire and dispose of any property. The shares which he holds do remain his property and his right to dispose of them is not lettered in any way. If to 'hold ' a property means to possess it, there is no infringe ment of this right either, for, as I have stated already, the acts complained of by the petitioner do not amount to dispossession of him from any property in the eye of law. It is argued that 'holding ' includes enjoyment of all benefits that are ordinarily attached to the ownership of a property. The enjoyment of the fruits of a property is undoubtedly an incident of ownership. The pecuniary benefit, which a share. holder derives from the shares he holds, is the dividend and there is no limitation on the petitioner 's right in this respect. The petitioner undoubtedly has been precluded from exercising his right of voting at the elec tion of directors so long as the statutory directors contin ue to manage the affairs of the company. He cannot pass an effective resolution in concurrence with the majority of shareholders without the consent or sanction of the Central Government and without such sanction, there is also a disa bility on him to institute any winding up proceedings in a court of law. In my opinion, these are rights or privileges which are appurtenant to or flow from the ownership of property, but by themselves and taken independently, they cannot be reck oned as property capable of being acquired, held or disposed of as is contemplated by article 19 (1) (f) of the Constitu tion. I do not think that there has been any restriction on the rights of a shareholder to hold, acquire or dispose of his share by reason of the impugned enactment and conse quently article 19 (1) (f) of the Constitution is of no assistance to the petitioner. In this view, the other point does not arise for consideration, but I may state here that even if it is conceded for argument 's sake that the 910 disabilities imposed by the impugned legislation amount to restrictions on proprietory right, they may very well be supported as reasonable restraints imposed in the interests of the general public, viz., to secure the supply of a commodity essential to the community and to prevent a seri ous unemployment amongst a section of the people. They are, therefore, protected completely by clause (5)of article 19. This disposes of the second point raised by Mr. Chari. The next point urged on behalf of the petitioner raises an important question of constitutional law which turns upon the construction of article 14 of the Constitution. It is urged by the learned Counsel for the petitioner that the Sholapur Act is a piece of discriminatory legislation which offends against the provision of article 14 of the Constitu tion. Article 14 guarantees to all persons in the territo ry of India equality before the law and equal protection of the laws and its entire object, it is said, is to prevent any person or class of persons from being singled out as a special subject of discriminatory legislation. It is pointed out that the law in this case has selected one particular company and its shareholders and has taken away from them the right to manage their own affairs, but the same treatment has not been meted out to all other companies or shareholders situated in an identical manner. Article 14 of the Constitution, it may be noted, corre sponds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declares that "no State shall deny to any person within its jurisdiction the equal protection of the laws. " We have been referred in course of the arguments on this point by the learned Counsel on both sides to quite a number of cases decided by the American Supreme Court, where questions turning upon the construction of the 'equal protection ' clause in the Ameri can Constitution came up for consideration. A detailed examination of these reports is neither necessary nor prof itable for our present purpose but we think we can cull a few general principles from some of the pronouncements of 911 the American Judges which might appear to us to be consonant with reason and help us in determining the true meaning and scope of article 14 of our Constitution. I may state here that so far as the violation of the equality clause in the Constitution is concerned, the peti tioner, as a shareholder of the company, has as much right to complain as the company itself, for his complaint is that apart from the discrimination made against the company, the impugned legislation has discriminated against him and the other shareholders of the company as a group vis a vis the shareholders of all other companies governed by the Indian Companies Act who have not been treated in a similar way. As the discriminatory treat ment has been in respect to the shareholders of this company alone, any one of the shareholders, whose interests are thus vitally affected, has a right to complain and it is immate rial that there has been nodiscrimination inter se amongst the shareholders themselves. It must be admitted that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, "equal protection of laws is a pledge of the protection of equal laws( ')," and this means "subjection to equal laws applying alike to all in the same situation("). " In other words, there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of the equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be (1) Yick Wo vs Hopkins, 118 U.S. at 369 (2) Southern Raliway Company vs Greene, ; ,412. 912 unconstitutional if it is not discriminatory in its charac ter (1). It would be bad law "if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency(2). " The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a cer tain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just rela tion to the things in respect to which the classification is made; and classification made without any ' substantial basis should be regarded as invalid(3). The question is whether judged by this test the im pugned Act can be said to have contravened the provision embodiedin article 14 of the Constitution. Obviously the Act purports to make provisions which are of a drastic character and against the general law of the land as laid down in the Indian Companies Act, in regard to the admin istration and management of the affairs of one company in indian territory. The Act itself gives no reason for the legislation but the Ordinance, which was a precursor of the Act expressly stated why the legislation was necessary. It said that owing to mismanagement and neglect, a situation had arisen in the affairs of the company which prejudicially affected the production of an essential commodity and caused serious unemployment amongst a certain section of the community. Mr. Chari 's contention in substance is that there are various textile companies in India situated in a simi lar manner as the Sholapur company, against which the same charges could be brought and for the control and regulation of which all the reasons that are mentioned in the preamble to the Ordinance (1) Willis Constitutional Law, p. 580. (2) Gulf C. & section F.R. Co. vs Ellis. , at 159. (3) Southern Railway Co. vs Greene, ; , at 412 913 could be applied. Yet, it is said, the legislation has been passed with regard to this one company alone. The argument seems plausible at first sight, but on a closer examination I do not think that I can accept it as sound. It must be conceded that the Legislature has a wide discretion in determining the subject matter of its laws. It is an accepted doctrine of the American Courts and which seems to me to be well founded on principle, that the presumption is favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles. As was said by the Supreme Court of America in Middleton vs Texas Power and Light Company(1), 'It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. " This being the position, it is for the petitioner to establish facts which would prove that the selection of this particular subject by the Legislature is unreasona ble and based upon arbitrary grounds. No allegations were made in the petition and no materials were placed before us to show as to whether there are other companies in India which come precisely under the same category as the Sholapur Spinning and Weaving Company and the reasons for imposing control upon the latter as mentioned in the preamble to the Ordinance are applicable to them as well. Mr. Chari argues that these are matters of common knowledge of which we should take judicial notice. I do not think that this is the correct line of approach. It is quite true that the Legislature has, in this instance, proceeded against one company only and its shareholders; but even one corporation or a group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some excep tional features which are not possessed by others. The courts should prima facie (1) 219 u.s. 152 at p. 157. 117 914 lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the court which would go to show that the selection is arbitrary and unsupportable. Throwing out of vague hints that there may be other instances of similar nature is not enough for this purpose. We have not even before us any statement on oath by the petitioner that what has been alleged against this particular company may be said against other companies as well. If there was any such statement, the respondents could have placed before us the whole string of events that led up to the passing of this legislation. If we are to take judi cial notice of the existence of similar other badly managed companies, we must take notice also of the facts which appear in the parliamentary proceedings in connection with this legislation which leave been referred to by my learned brother, Fazl Ali J. in his judgment and which would go to establish that the facts connected with this corporation are indeed exceptional and the discrimination that has been made can be supported on just and reasonable grounds. I purpose ly refrain from alluding to these facts or basing my deci sion thereon as we had no opportunity of investigating them properly during the course of the hearing. As matters stand, no proper materials have been placed before us by either side and as I am unable to say that the legislature cannot be supported on any reasonable ground, I think it to be extremely risky to overthrow it on mere suspicion or vague conjectures. If it is possible to imagine or think of cases of other companies where similar or identical condi tions might prevail, it is also not impossible to conceive of something" peculiar" or "unusual" to this corporation which led the legislature to intervene in its affairs. As has been laid down by the Supreme Court of America, "The Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the need is deemed to be the clearest"(1). We should (1) Radics, vs New York, 264 U.S. 915 bear in mind that a corporation, which is engaged in produc tion of a commodity vitally essential to the community, has a social character of its own, and it must not be regarded as the concern primarily or only of those who invest their money in it. If its possibilities are large and it had a prosperous and useful career for a long period of time and is about to collapse not for any economic reason but through sheer perversity of the controlling authority, one cannot say that the legislature has no authority to treat it as a class by itself and make special legislation applicable to it alone in the interests of the community at large. The combination of circumstances which are present here may be of such unique character as could not be existing in any other institution. But all these, I must say, are matters which require investigation on proper materials which we have not got before us in the present case. In these circum stances I am constrained to hold that the present applica tion must fail on the simple ground that the petitioner made no attempt to discharge the primafacie burden that lay upon him and did not place before us the materials upon which a proper decision on the point could be arrived at. In my opinion , therefore, the attack on the legislation on the ground of the denial of equal protection of law cannot succeed. The only other thing that requires to be considered is the argument of Mr. Chari that the law in question is in valid as it is not covered by any of the items in the legis lative list. In my opinion, this argument has no substance. What the law has attempted to do is to regulate the affairs of this company by laying down certain special rules for its management and administration. It is fully covered by item No. 43 of the Union List which speaks inter alia of "incor poration, regulation and winding up of trading corporations. " The result is that the application fails and is dis missed with costs. DAS J. As I have arrived at a conclusion different from that reached by the majority of this Court, I 916 consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons for my conclusions in some detail. On January 9, 1950, the Governor General of India, acting under section 42 of the Government of India Act, 1935, promulgated an Ordinance, being Ordinance No. II of 1950, concenrning the Sholapur Spinning and Weaving Company, Limited, (hereafter referred to as the said company). The preambles and the provisions of the Ordinance have been referred to in the judgment just delivered by Mukherjea J. and need not be recapitulated by me in detail. Suffice it to say that the net result of the Ordinance was that the managing agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to nominate directors, the rights of the shareholders of this company were curtailed in that it was made unlawful for them to nominate or appoint any director, no resolution passed by them could be given effect to without the sanction of the Government and no proceeding for winding up could be taken by them without such sanction, and power was given to the Government to further modify the provisions of the Indian Companies Act in its application to the said company. On the very day that the Ordinance was promulgated the Central Government acting under section 15 delegated all its powers to the Government of Bombay. On January 10, 1950, the Government of Bombay appointed Respondents Nos. 3 to 7 as the new directors. On March 2, 1950, Respondent No. 5 having resigned, Respondent No. 8 was appointed a director in his place and on the same day Respondent No. 9 was also appointed as a director. In the meantime the new Constitu tion had come into force on January 26, 1950. On February 7, 1950, the new directors passed a resolution sanctioning a call for Rs. 50 on the preference shares. Thereupon a suit being Suit No. 438 of 1950 was filed in the High Court of 917 Bombay by one Dwarkadas Shrinivas against the new directors challenging the validity of the Ordinance and the right of the new directors to make the call. Bhagwati J. who tried the suit held that the Ordinance was valid and dismissed the suit. An appeal (Appeal No. 48 of 1950) was taken from that decision which was dismissed by a Division Bench (Chagla C.J. and Gajendragadkar J.) on August 29, 1950. In the meantime, on April 7, 1950, the Ordinance was replaced by Act No. XXVIII of 1950. The Act substantially reproduced the provisions of the Ordinance except that the preambles to the Ordinance were omitted. On May 29, 1950, the present petition was filed by one Chiranjitlal Chowdhuri. The petitioner claims to be a shareholder of the said company holding 80 preference shares and 3 ordinary shares. The preference shares, according to him, stand in the name of the Bank of Baroda to whom they are said to have been pledged. As those preference shares are not registered in the name of the petitioner he cannot assert any right as holder of those shares. According to the respondents, the petitioner appears on the register as holder of only one fully paid up ordinary share. For the purposes of this application, then, the petitioner 's interest in the said company must be taken as limited to only one fully paid up ordinary share. The respondents are the Union of India, the State of Bombay and the new directors besides the company itself. The respondent No. 5 having resigned, he is no longer a director and has been wrongly impleaded as respond ent. The reliefs prayed for are that the Ordinance and the Act are ultra vires and void, that the Central Government and the State Government and the directors be restrained from exercising any powers under the Ordinance or the Act, that a writ of mandamus be issued restraining the new direc tors from exercising any powers under the Ordinance or the Act or from in any manner interfering with the management of the affairs of the company under colour of or in purported exercise of any powers under the said Ordinance or Act. 918 The validity of the Ordinance and the Act has been challenged before us on the following grounds: (i) that it was not within the legislative competence (a) of the Gover nor General to promulgate the Ordinance, or (b) of the Parliament to enact the Act, and (ii) that the Ordinance and the Act infringe the fundamental rights of the shareholders as well as those of the said company and are, therefore, void and inoperative under article 13. Re (i) . The present application has been made by the petitioner under article 52 of the Constitution. Sub section (1) of that article guarantees the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part [1] of the Constitution. Sub section (2) empowers this Court to issue directions or orders or writs, including certain specified writs, whichever may be appro priate, for the enforcement of any of the rights conferred by that Part. It is clear, therefore, that article 32 can only be invoked for the purpose of the enforcement of the fundamental rights. Article 32 does not permit an applica tion merely for the purpose of agitating the competence of the appropriate legislature in passing any particular enact ment unless the enactment also infringes any of the funda mental rights. In this case the claim is that the fundamen tal rights have been infringed and, therefore, the question of legislative competence may also be incidentally raised on this application. It does not appear to me, however, that there is any substance in this point for, in my opinion, entry 33 of List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 43 of the Union List set out in the Seventh Schedule to the Constitu tion clearly support these pieces of legislation as far as the question of legislative competency is concerned. Sec tions 83A and 83 B of the Indian Companies Act can only be supported as valid on the ground that they regulate the management of companies and are, therefore, within the said entry. Likewise, the provisions of the Ordinance and the Act relating to the appointment of directors by the 919 Government and the curtailment of the shareholders ' rights as regards the election of directors, passing of resolutions giving directions with respect to the management of the company and to present a winding up petition are matters touching the management of the company and, as such, within the legislative competence of the appropriate legislative authority. In my judgment, the Ordinance and the Act cannot be held to be invalid on the ground of legislative incompe tency of the authority promulgating or passing the same. Re (ii) The fundamental rights said to have been in fringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by article 31, In Gapalan 's case (1) 1 pointed out that the rights conferred by article 19 (1) (a) to (e) and (g) would be available to the citizen until he was, under article 21, deprived of his life or personal liberty according to procedure established by law and that the right to property guaranteed by article 19 (1)(f) would likewise continue until the owner was, under article 31, deprived of such property by authority of law. Therefore, it will be necessary to consider first whether the shareholder or the company has been deprived of his or its property by authority of law under Article 31 for, if he or it has been so deprived, then the question of his or its fundamental right under article 19 (1) (f) will not arise. The relevant clauses of article 31 run as follows "31. (1) No person shall be deprived of his property save by authority of law. (2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorisingthe taking of such possession or such acquisition, unless the law provides for compensation for the property taken posses sion of or acquired (1) ; 920 and either fixes the amount of the compensation, or speci fies the principles on which, and the manner in which, the compensation is to be determined and given. " Article 31 protects every person, whether such ' person is a citizen or not. and it is wide enough to cover a natu ral person as well as an artificial person. Whether or not, having regard to the language used in article 5, a corpora tion can be called a citizen and as such entitled to the rights guaranteed under article 19, it is quite clear that the corporation is protected by article 31, for that article protects every "person" which expression certainly includes an artificial person. The contention of the peitioner is that the Ordinance and the Act have infringed his fundamental right to property as a shareholder in the said company. Article 31, like article 19(1) (f), is concerned with "property ". Both the articles are in the same chapter and deal with fundamental rights. Therefore, it is reasonable to say that the word "property" must be given the same meaning in construing those two articles. What, then, is the meaning of the word "property"? It may mean either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible, or it may mean the thing itself over or in respect of which the owner may exercise these rights. It is quite clear that the Ordinance or the Act has not deprived the shareholder of his share itself. The share still be longs to the shareholder. He is still entitled to the dividend that may be declared. He can deal with or dispose of the share as he pleases. The learned Attorney General contends that even if the other meaning of the word "proper ty" is adopted, the shareholder has not been deprived of his" property" understood in that sense, that is to say he has not been deprived of the entire bundle of rights which put together constitute his "property ". According to him the" property" of the shareholder, besides and apart from his right to elect directors, to pass resolutions giving directions to the directors and to present a winding up petition, consists in his right to participate 921 in the dividends declared on the profits made by the working of the company and, in case of winding up, to participate in the surplus that may be left after meeting the winding up expenses and paying the creditors. Those last mentioned rights, he points out, have not been touched at all and the shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if and when declared. Therefore, concludes the learned Attorney General, the shareholder cannot complain that he has been deprived of his "property", for the totality of his rights have not been taken away. The argument thus formulated appears to me to be somewhat too wide, for it will then permit the legisla ture to authorise the State to acquire or take possession, without any compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights. This result could not, in my opinion, have been intended by our Constitution. As said by Rich J. in the Minister for State for the Army vs Datziel (i) while dealing with section 31 (XXXI) of the Australian Constitution "Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencurnbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placi tum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it is expropriating. " The learned Judge then concluded as follows at p. 286 : "It would in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorising the acquisition of a citi zen 's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses or upon no terms at all." (1) ; 118 922 In my judgment the question whether the Ordinance or the Act has deprived the shareholder of his "property" must depend, for its answer, on whether it has taken away the substantial bulk of the rights constituting his "property". In other words, if the rights taken away by the Ordinance or the Act are such as would render the rights left un touched illusory and practically valueless, then there can be no question that in effect and substance the "property" of the shareholder has been taken away by the Ordinance or the Act. Judged by this test can it be said that the right to dispose of the share and the right to receive dividend, if any, or to participate in the surplus in the case of winding up that have been left to the shareholder are illu sory or practically valueless, because the right to control the management by directors elected by him, the right to pass resolutions giving directions to the directors and the right to present a winding up petition have, for the time being, been suspended ? I think not. The right still pos sessed by the shareholder are the most important of the rights constituting his "property", although certain privi leges incidental to the ownership have been put in abeyance for the time being. It is, in my opinion, impossible to say that the Ordinance or the Act has deprived the shareholder of his "property" in the sense in which that word is used in article 19 (1) (f) and article 31. The curtailment of the incidental privileges, namely, the right to elect directors, to pass resolutions and to apply for winding up may well be supported as a reasonable restraint on the exercise and enjoyment of the shareholder 's right of property imposed in the interests of the general public under article 19 (5), namely, to secure the supply of an essential commodity and to prevent unemployment. Learned counsel for the petitioner, however, urges that the Ordinance and the Act have infringed the sharehold er 's right to property in that he has been deprived of his valuable right to elect directors, to give directions by passing resolutions and, in case of apprehension of loss, to present a petition for the winding 923 up of the company. These rights, it is urged, are by them selves "property" and it is of this "property" that the shareholder is said to have been deprived bythe State under a law which does not provide for payment of compensation and which is, as such, an infraction of the shareholder 's funda mental right to property under article 31 (2). Two ques tions arise on this argument. Are these rights "property" within the meaning of the two articles I have mentioned ? These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are "proper ty" within the meaning of those articles, for those articles only regard that as "property" which can by itself be ac quired, disposed of or taken possession of. The right to vote for the election of directors, the right to pass reso lutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be ac quired or disposed of or taken possession of as contemplated by those articles. The second question is assuming that these rights are by themselves "property ", what is the effect of the Ordinance and the Act on such "property". It is nobody 's case that the Ordinance or the Act has autho rised any acquisition by the State of this "property" of the shareholder or that there has in fact been any such acquisi tion. The only question then is whether this "property" of the shareholder, meaning thereby only the rights mentioned above, has been taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject 0 course, to the sanction of the Government. Assuming, however, that the fetters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, 924 vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder. The Government undoubtedly appoints directors under the Act, but such appointment is made in exercise of the the powers vested in the Government by the Ordinance or the Act and not in exercise of the shareholder 's right. As already indicated, entry 43 in the Union List authorises Parliament to make laws with respect, amongst other things, to the regulation of trading corpora tions. There was, therefore, nothing to prevent Parliament from amending the Companies Act or from passing a new law regulating the management of the company by providing that the directors, instead of being elected by the shareholders, should be appointed by the Government. The new law has undoubtedly cut down the existing rights of the shareholder and thereby deprived the shareholder of his unfettered right to appoint directors or to pass resolutions giving direc tions or to present a winding up petition. Such depriva tion, however, has not vested the rights in the Government or its nominee. What has happened to the rights of the shareholder is that such rights have been temporarily de stroyed or kept in abeyance. The result, therefore, has been that although the shareholder has been for the time being deprived of his "property", assuming these rights to be "property", such "property" has not been acquired or taken possession of by the Government. If this be the result brought about by the Ordinance and the Act, do they offend against the fundamental rights guaranteed by article 31 ? Article 31 (1) formulates the fundamental right in a nega tive form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31 (2) prohib its the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2)o[ article 31 deal with the same topic, namely, compulsory acquisition or taking possession 925 of property, clause (2) being only an elaboration of clause (1). There appear to me to be two objections to this sug gestion. If that were the correct view, then clause (1).must be held to be wholly redundant and clause (2), by itself, would have been sufficient. In the next place, such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building. This deprivation of property is sup ported in the United States of America as an exercise of "police power ".This deprivation of property is different from acquisition or taking of possession of property which goes by the name of "eminent domain" in the American Law. The construction suggested implies that our Constitution has dealt with only the law of "eminent domain ", but has not provided for deprivation of property in exercise of police powers ' '. I am not prepared to adopt such construction, for I do not feel pressed to do so by the language used in article 31. On the contrary, the language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it. I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be de prived of his property, provided he is so deprived by au thority of law. No question of compensation arises under clause (1). The effect of clause (2) is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by 926 authority of law. In this case, as already stated, although the shareholder has been deprived of certain rights, such deprivation has been by authority of law passed by a compe tent legislative authority. This deprivation having been brought about otherwise than by acquisition or taking pos session of such rights, no question of compensation can arise and, therefore, there can be no question of the infraction of fundamental rights under article 31 (2). It is clear, therefore, that so far as the shareholder is concerned there has been no infringement of his fundamental rights under article 19 (1) (f) or article 31, and the shareholder cannot question the constitutionality of the Ordinance or the Act on this ground. As regards the company it is contended that the Ordi nance and the Act by empowering the State to dismiss the managing agent, to discharge the directors elected by the shareholders and to appoint new directors have in effect authorised the State to take possession of the undertaking and assets of the company through the new directors appoint ed by it without paying any compensation and, therefore, such law is repugnant to article 31 (2) of our Constitution. It is, however, urged by the learned Attorney General that the mills and all other assets now in the possession and custody of the new directors who are only servants or agents of the said company are, in the eye of the law, in the possession and custody of the company and have not really been taken possession of by the State. This argument, however, overlooks the fact that in order that the posses sion of the servant or agent may be juridically regarded as the possession of the master or principal, the servant or agent must be obedient to, and amenable to the directions of, the master or principal. If the master or principal has no hand in the appointment of the servant or agent or has no control over him or has no power to dismiss or discharge him, as in this case, the possession of such servant or agent can hardly, in law, be regarded as the possession of the company(1). In this view of the (1) See Elements of Law by Markby. 6th Edition. Para 371. p. 192. 927 matter there is great force in the argument that the proper ty of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compen sation. The appropriate legislative authority was no doubt induced to enact this law, because, as the preamble to the Ordinance stated, on account of mismanagement and neglect, a situation had arisen in the affairs of the company which had prejudicially affected the production of an essential com modity and had caused serious unemployment amongst a certain section of the community, but, as stated by Holmes J. in Pennsylvania Coal Company vs Mahon(1), "A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional. way of paying for the change. " Here, there fore, it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation, the fundamental right of the company has, in the eye of the law, been infringed. If the fundamental right of the company has been in fringed, at all, who can complain about such infringement ? Primafacie the company would be the proper person to come forward in vindication of its own rights. It is said that the directors having been dismissed, the company cannot act. This, however, is a misapprehension, for if the Act be void on account of its being unconstitutional, the directors appointed by the shareholders have never in law been dis charged and are still in the eye of the law the directors of the company, and there was nothing to prevent them from taking proceedings in the name of the company at their own risk as to costs. Seeing that the directors have not come forward to make the application on behalf of the company and in its name the question arises whether (1) ; 928 an individual shareholder can complain. It is well settled in the United States that no one but those whose rights are directly affected by a law can raise the question of the constitutionality of that law. Thus in McCabe vs Atchison(1) which arose out of a suit filed by five Negros against five Railway Companies to restrain them from making any distinction in service on account of race pursuant to an Oklahoma Act known as ' 'The Separate Coach Law," in uphold ing the dismissal of the suit Hughes J. observed : "It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainants ' need of it and the absence of an adequate remedy at law must clearly appear. The complaint cannot succeed because some one else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant not to others which justi fies judicial interference. " In that case there was no allegation that anyone of the plaintiffs had ever travelled on anyone of the rail roans or had requested any accommodation in any of the sleeping cars or that such request was refused. The same principle was laid down in Jeffrey Manufacturing Company vs Blagg(2), Hendrick vs MaCyland(3) and Newark Natural Gas and Fuel Company vs The City of Newark(1). In each of these cases the Court declined to permit the person raising the question of constitutionality to do so on the ground that his rights were not directly affected by the law or Ordinance in ques tion. On the other hand, in Truax vs Raich(5) and in Bu chanan vs Warley(5) the Court allowed the plea because in both the cases the person raising it was directly affected. In the first of the two last mentioned cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not less than eighty per cent. native born citi zens was (1) 235 u.s. 151. (4) 242 u.s. 403. (2) 235 u.s. 571. (5) 239 u.s. 33. (3) ; (6) 245 u.s. 60. 929 challenged by an alien who had been employed as a cook in a restaurant. That statute made a violation of the Act by an employer punishable. The fact that the employment was at will or that the employer and not the employee was subject to prosecution did not prevent the employee from raising the question of constitutionality because the statute, if en forced, would compel the employer to discharge the employee and, therefore, the employee was directly affected by the statute. In the second of the two last mentioned cases a city Ordinance prevented the occupation of a plot by a colored person in a block where a majority of the residences were occupied by white persons. A white man sold his property in such a block to a Negro under a contract which provided that the purchaser should not be required to accept a deed unless he would have a right, under the laws of the city, to occupy the same as a residence. The vendor sued for specific performance and contended that the Ordinance was unconstitutional. Although the alleged denial of con stitutional rights involved only the rights of coloured persons and the vendor was a white person yet it was held that the vendor was directly affected, because the Courts below, in view of the Ordinance, declined to enforce his contract and thereby directly affected his right to sell his property. It is, therefore, clear that the constitutional validity of a law can be challenged only by a person whose interest is directly affected by the law. The question then arises whether the infringement of the company 's rights so directly affects its shareholders as to entitle any of its shareholders to question the constitutional validity of the law infringing the company 's rights. The question has been answered in the negative by the Supreme Court of the United States in Darnell vs The State of Indi ana(1). In that case the owner of a share in a Tennessee corporation was not allowed to complain that an Indiana law discriminated against Tennessee corporations in that it did not make any allowance, as it did in the case of Indiana corporations, where the corporation (1) 119 930 had property taxed within the State. This is in accord with the well established legal principle that a corporation is a legal 'entity capable of holding pro perty and of suing or being sued and the corporators are not, in con templation of law, the owners of the assets of the corpora tion. In all the cases referred to above the question of constitutionality was raised in connection with the equal protection clause in the Fourteenth Amendment of the American Federal Constitution. If such be the require ments of law in connection with the equal protection clause which corresponds to our article 14, it appears to me to follow that only a person who is the owner of the property can raise the question of constitutionality under article 31 of a law by which he is so deprived of his property. If direct interest is necessary to permit a person to raise the question of constitutionality under article 14, a direct interest in the property will, I apprehend, be necessary to entitle a person to challenge a law which is said to infringe the right to that property under article 31. In my opinion, although a shareholder may, in a sense be interested to see that the company of which he is a shareholder is not deprived of its property he cannot, as held in Darnell vs Indiana(1), be heard to complain, in his own name and on his own behalf, of the infringement of the fundamental right to property of the company, for, in law, his own right to property has not been infringed as he is not the owner of the company 's properties. An interest in the company owning an undertak ing is not an interest in the undertaking itself. The interest in the company which owns an undertaking is the "property" of the shareholder under article 31 (2), but the undertaking is the property of the company and not that of the shareholder and the latter cannot be said to have a direct interest in the property of the company. This is the inevitable result of attributing a legal personality to a corporation. The proceedings for a writ in the nature of a writ of habeas corpus appear to be somewhat different for the (1) 226 u. section 338 931 rules governing those proceedings permit, besides the person imprisoned, any person, provided he is not an utter strang er, but is at least a friend or relation of the imprisoned person, to apply for that particular writ. But that special rule does not appear to be applicable to the other writs which require a direct and tangible interest in the appli cant to support his application. This must also be the case where the applicant seeks to raise the question of the constitutionality of a under articles 14, 19 and 31. For the reasons set out above the present petitioner cannot raise the question of constitutionality of the impugned law under article 31. He cannot complain of any infringement of his own rights as a shareholder, because his "property" has not been acquired or taken possession of by the State although he has been deprived of his right to vote and to present a winding up petition by authority of law. Nor can he complain of an infringement of the compa ny 's right to property because he is not, in the eye of law, the owner of the property in question and accordingly not directly interested in it. In certain exceptional cases where the company 's property is injured by outsiders, a shareholder may, under the English law, alter making all endeavours to induce the persons in charge of the affairs of the company to take steps, file a suit on behalf of himself and other shareholders for redressing the wrong done to the company, but that principle does not apply here for this is not a suit, nor has it been shown that any attempt was made by the petitioner to induce the old directors to take steps nor do these proceedings purport to have been taken by the petitioner on behalf of himself and the other shareholders of the.company. The only other ground on which the Ordinance and the Act have been challenged is that they infringe the the fundamen tal rights guaranteed by article 14 of the Constitution. "Equal protection of the laws", as observed by Day 3. in Southern Railway Company vs Greene (1), "means subjection to equal laws, applying (1) ; 932 alike to all in the same situation". The inhibition of the article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrim ination amongst equals and to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not, howev er, mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position. The varying needs of different class es of persons often require separate treatment and it is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the Ameri can Constitution does not take away from the State the power to classify persons for legislative purposes. This classi fication may be on different bases. It may be geographical or according to objects or occupations or the like. If law deals equally with all of a certain well defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no applica tion to other persons, for the class for whom the law has been made is different from other persons and, there fore, there is no discrimination amongst equals. It is plain that every classification is in some degree likely ' to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary. " Said Day J. in Southern Railway Company vs Greene(1) : " While reasonable classification is permitted, without doing vio lence to the equal protection of the laws, such classifica tion must be based upon some real and substantial distinc tion, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification". Quite conceivably there may be a law 933 relating to a single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself. In Middieton vs Texas Power and Light Company(1) it was pointed out that there was a strong presumption that a legislature understood and correctly appreciated the needs of its own people, that its laws were directed to problems made manifest by experience and that the discriminations were based upon adequate grounds. It was also pointed out in that case that the burden was upon him who attacked a law for unconstitutionality. In Lindsley vs Natural Carbonic Gas Company(2) It was also said that one who assailed the classification made in a law must carry the burden of showing that it did not rest upon any reasonable basis but was essentially arbitrary. If there is a classi fication, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the stat ute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbi trarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer J. in the Gulf, Colorado and Santa Fe 'Railway vs W.H. Ellis (3), while good faith (1} ; (2) ; (3) 165 U.S. 150. 934 and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presump tion to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain indi viduals or corporations to hostile and discriminating legis lation was to make the protecting clause a mere rope of sand, in no manner restraining State action. The complaint of the petitioner on this head is formu lated in paragraph 8 (iii) of the petition as follows : "The Ordinance denied to the company and its sharehold ers equality before the law and equal protection of the laws and was thus a violation of article 14 of the Constitution. The power to make regulations relating to trading corpo rations or the control or production of industries was a power which consistently with article 14 could be exercised only generally or with reference to a class and not with reference to a single company or to shareholders of a single company. " The Act is also challenged on the same ground in paragraph 9 of the petition. The learned Attorney General contends that the petitioner as an individual shareholder cannot complain of discrimination against the company. It will be noticed that it is not a case of a shareholder complaining only about discrimination against the company or fighting the battle of the company but it is a case of a shareholder complaining of discrimination against himself and other shareholders of this company. It is true that there is no complaint of discrimination inter se the share holders of this company but the complaint is that the share holders of this company, taken as a unit, have been discrim inated vis a vis the shareholders of other companies. Therefore, the question as to the right of the shareholder to question the validity of a law infringing the right of the company does not arise. Here the shareholder is com plaining of the infringement of his own rights and if such infringement can be established I see no reason why the shareholder cannot come within article 32 to vindicate his own rights. The fact that these proceedings have been taken by 935 one single shareholder holding only one single fully paid up share does not appear to me to make any the least difference in principle. If this petitioner has, by the Ordinance or the Act, been discriminated against and denied equal protec tion of the law, his fundamental right has been infringed and his right to approach this Court for redress cannot be made dependent on the readiness or willingness of other shareholders whose rights have also been infringed to join him in these proceedings or of the company to take substan tive proceedings. To take an example, if any law discrimi nates against a class, say the Punjabis, any Punjabi may question the constitutionality of the law, without joining the whole Punjabi community or without acting on behalf of all the Punjabis. To insist on his doing so will be to put a fetter on his fundamental right under article 32 which the Constitution has not imposed on him. Similarly, if any law deprives a particular shareholder or the shareholders of a particular company of the ordinary rights of sharehold ers under the general law for reasons not particularly and specially applicable to him or them but also applicable to other shareholders of other companies, such law surely offends against article 14 and any one so denied the equal protection of law may legitimately complain of the infringe ment of his fundamental right and is entitled as of right to approach this Court under article 32 to enforce his own fundamental right under article 14, irrespective of whether any other person joins him or not. To the charge of denial of equal protection of the laws the respondents in the affidavit of Sri Vithal N. Chandavar kar filed in opposition to the petition make the following reply: "With reference to paragraph 6 of the petition, I deny the soundness of the submissions that on or from the 26th January, 1950, when the Constitution of India came into force the said Ordinance became void under article 13(1) of the Constitution or that the provisions thereof were inconsistent with the provisions of Part III of the said Constitution or for any of the other grounds mentioned in paragraph 8 936 of the said petition. " In the whole of the affidavit in opposition there is no suggestion as to why the promulgation of the Ordinance or the passing of the Act was considered necessary at all or on what principle or basis either of them was founded. No attempt has been made in the affidavit to show that the Ordinance or the Act was based upon any principle of classification at all or even that the particu lar company and its shareholders possess any special quali ties which are not to be found in other companies and their shareholders and which, therefore, render this particular company and its shareholders a class by themselves. Neither the affidavit in opposition nor the learned Attorney General in course of his arguments referred to the statement of the objects and reasons for introducing the bill which was eventually enacted or the Parliamentary debates as showing the reason why and under what circumstances this law was made and, therefore, apart from the question of their admis sibility in evidence, the petitioner has had no opportunity to deal with or rebut them and the same cannot be used against him. The learned Attorney General takes his stand on the presumption that the law was founded on a valid basis of classification, that its discriminations were based upon adequate grounds and that the law was passed for safeguard ing the needs of the people and that, therefore, the onus was upon the petitioner to allege and prove that the classi fication which he challenged did not rest upon any reasona ble basis but was essentially arbitrary. I have already said that if on the face of the law there is no classification at all or, at any rate, none on the basis of any apparent difference specially peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all. Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of. the law itself, that 937 it is "actually and palpably unreasonable and arbitrary" and thereby discharging the initial onus. The Act is intituled an Act to make special provision for the proper management and administration of the Sholapur Spinning and Weaving Company, Limited. " There is not even a single preamble alleging that the company was being misman aged at all or that any special reason existed which made it expedient to enact this law. The Act, on its face, does not purport to make any classification at all or to specify any special ' vice to which this particular company and its shareholders are subject and which is not to be found in other companies and their shareholders so as to justify any special treatment. Therefore., this Act, ex facie, is nothing but an arbitrary selection of this particular compa ny and its shareholders for discriminating and hostile treatment and read by itself.is palpably an infringement of Article 14 of the Constitution. The learned Attorney General promptly takes us to the preambles to the Ordinance which has been replaced by the Act and suggests that the Act is based on the same consider ations on which the Ordinance was promulgated. Assuming that it is right and permissible to refer to and utilise the preambles, do they alter the situation ? The preambles were as follows : "Whereas on account of mismanagement and ne glect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudi cially affected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;And whereas an emergency has arisen which renders it necessary to make special provision for the proper management and administration of the aforesaid compa ny; " The above preambles quite clearly indicate that the justification of the Ordinance rested on mismanagement and neglect producing certain results therein specified. It will be noticed that apart from these preambles there is no material whatever before us establishing or even suggesting that this company and its shareholders have in fact been guilty of any 938 mismanagement or neglect. Be that as it may, the only reason put forward for the promulgation of the Ordinance was mismanagement resulting in falling off of production and in producing unemployment. I do not find it necessary to say that mismanagement and neglect in conducting the affairs of companies can never be a criterion or basis of classifica tion for legislative purposes. I shall assume that it is permissible to make a law whereby all delinquent companies and 'their shareholders may be brought to book and all companies mismanaging their affairs and the shareholders of such companies may, in the interest of the general public, be deprived of their right to manage the affairs of their companies. Such a classification made by a law would bear a reasonable relation to the conduct of all delinquent compa nies and shareholders and may, therefore, create no inequal ity, for the delinquent companies and their shareholders from a separate class and cannot claim equality of treatment with good companies and their shareholders who are their betters. But a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delinquent companies and one set cannot be punished for its delinquency while another set is permitted to continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other. To do so will be nothing but an arbitrary selection which can never be justified as a permissible classiffication. I am not saying that this particular company and its shareholders may not be guilty of mismanagement and negligence which has brought about seri ous fall in production of an essential commodity and also considerable unemployment. But if mismanagement affect ing production and resulting in unemployment is to be the basis of a classification for making a law for preventing mismanagement and securing production and employment, the law must embrace within its 939 ambit all companies which now are or may hereafter become subject to the vice. This basis of classification, by its very nature, cannot be exclusively applicable to any partic ular company and its shareholders but is capable of wider application and, therefore, the law founded on that basis must also be wide enough so as to be capable of being ap plicable to whoever may happen at any time to fall within that classification. Mismanagement affecting production can never be reserved as a special attribute peculiar to a particular company or the shareholders of a particular company. It it were permissible for the legislature to single out an individual or class and to punish him or it for some delinquency which may equally be found in other individuals or classes and to leave out the other individu als or classes from the ambit of the law the prohibition of the denial of equal protection of the laws would only be a meaningless and barren form of words. The argument that the presumption being in favour of the legislature, the onus is on the petitioner to show there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst a certain section of the community does not, in such. circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in it application, be limited only to this company and its shareholders and, that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particu lars similarly situated In any event, the petitioner, in my opinion, may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classifica tion which, by its very nature, cannot be exclusively ap plicable to this company and its shareholders but Which may be equally appplicable to other companies 940 and their shareholders and has penalised this particular company and its shareholders, leaving out other companms and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preambles. In my opinion the legislation in question infringes the fundamental rights of the petitioner and offends against article 14 of our Constitution. The result, therefore, is that this petition ought to succeed and the petitioner should have an order in terms of prayer (3) of the petition with costs. Petition dismissed. Agent for the petitioner: M.S.K. Aiyengar. Agent for opposite party Nos. 1 & 2:P.A. Mehta. Agent for opposite party Nos. 3 to 5 and 7 to 10: Rajinder Narain.

The Governor General of India, finding that on account of mismanagement and neglect a situation had arisen in the affairs of the Sholapur Spinning and Weaving Company Ltd. which had prejudicially affected the production of an essen tial commodity and had caused serious unemployment amongst a certain section of the community, and that an emergency had thereby arisen which rendered it necessary to make special provision for the proper management and administration of the said company, promulgated an Ordinance, which was subse quently reenacted in the form of an Act of the Legislature called the sholpur Spinning and Weaving Company (Emergency Provisions)Act, 1950, the net result of which was that the Managing Agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to appoint new directors, the rights of the shareholders of the company were curtailed in the matters of voting, appointment of directors, passing of resolutions and applying for winding up, and power was also given to the Government to further modify the Indian Companies Act in its application to the company; and in accordance with the provisions of the Ordi nance new directors were appointed by the Government. A shareholder of the company made an application under article 32 of the Constitution for a declaration that the Act was void and for enforcement of his fundamental rights by a writ of mandamus against the Central Government, the Government of Bombay and the directors, restraining them from exercising any powers under the Act and from interfering with the management of the company, on the ground that the Act was not within the Legislative competence 870 of the Parliament and infringed his fundamental rights guaranteed by articles 19 (1) (f), 31 and 14 of the Constitu tion and was consequently void under article 13. The company was made a respondent and opposed the petition. Held per KANIA C.J., FAZL ALI, MUKHERJEA and DAS JJ. (i) that the impugned Act did not infringe any fundamental right of the petitioner under article 31 (1), as if did not deprive the company or the petitioner of any property save under authority of law; (ii) that the impugned Act did not infringe any fundamen tal right guaranteed by article 31 (2.) inasmuch as it did not authorise the "acquisition" of any property of the company or of the shareholders or "the taking possession" of the property of the petitioner, namely, the shares which he held in the company, though he was disabled from exercising some of the rights which an ordinary shareholder in a company could exercise in respect of his shares, such as the right to vote, to appoint directors, and to apply for winding up; and, if the Act had authorised the "taking possession" of the property of the company, the petitioner was not entitled to any relief on that score under article 32; (iii) that, as the Act did not impose any restrictions on the petitioner 's right "to acquire, hold and dispose of" his shares, there was no infringement of article 19 (1) (f); and assuming that the restrictions imposed on the right of voting etc. were restrictions on the right to acquire, hold or dispose of property within article 19 (1) (f), such restric tions were reasonable restrictions imposed in the interests of the public, namely, to secure the supply of a commodity essential to the community and to prevent serious unemploy ment amongst a section of the people, and were therefore completely protected by cl. (5) of article 19. Held also per KANIA C.J., FAZL ALI, and MUKHERJEA JJ. (PATANJALI SASTRI AND DAS JJ. dissenting). that though the Legislature had proceeded against one company only and its shareholders, inasmuch as even one corporation or a group of persons can be taken to be class by itself for the purposes of legislation, provided there is sufficient basis or reason for it and there is a strong presumption in favour of the constitutionality/of an enactment, the burden was on the petitioner to prove that there were also other companies similarly situated and this company alone had been discrimi nated against, and as he had failed to discharge this burden the impugned Act cannot be held to have denied to the peti tioner the right to equal protection of the laws referred to in article He and the petitioner was not therefore entitled to any relief under article 32. Per PATANJALI SASTRI J. As the impugned Act plainly denied to the shareholders of this particular company the protections of the law relating to incorporated Joint Stock Companies as embodied in the Indian Companies Act. it was Prima facie within 871 the inhibition of article 14; and, even though when a law is made applicable to a class of persons or things and the classification is based on differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its applica tion is found to affect only one person or thing. since the impugned Act selected a particular company and imposed upon it and its shareholders burdens and disabilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its undertaking no ques tion of reasonable classification arose and the Act was plainly discriminatory in character and within the constitu tional inhibition of article 14. Whilst all reasonable pre sumptions must undoubtedly be made in favour of the consti tutional validity of a law made competent legislature, no such presumption could be raised in this case as on the face of it the Act was discriminatory and the petitioner could not be called upon to prove that similar mismanagement existed in other companies. The issue was not whether the impugned Act was ill advised or not justified by the facts on which it was based but whether it transgressed the ex plicit constitutional restriction on legislative power imposed by article 14. Per DAs J. The impugned Act, ex facie, is nothing but an arbitrary selection of a particular company and its shareholders for discriminating and hostile treatment, and, read by itself, is palpably an infringement of article 14 of the Constitution. Assuming that mismanagement and neglect in conducting the affairs of a company can be a basis of classification and that such a classification would bear a reasonable relation to the conduct of all delinquent compa nies and shareholders and may therefore create no inequali ty, a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delin quent companies, and one set cannot he punished for its delinquency while another set is permitted to. continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other. The argument that the pre sumption being in favour of the Legislature, the onus is on the petitioner to show that there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst, certain section of the community does not, in such circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in its application, be limited only to this company and its shareholders; and that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particulars similarly situated. In any event the petitioner, 872 may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classification which, by its very nature, cannot be exclusively applicable to this company and its shareholders but which may be equally ap plicable to other companies and their shareholders and has penalised this particular company and its shareholders, leaving out other companies and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preamble in the Ordinance. Per PATANJALI SASTRI, MUKHERJEA and DAS JJ. (KANIA, C.J,, dubitante). In so far as the petitioner 's rights as a shareholder were curtailed he was entitled to apply for relief under article 30, in his own right on the ground that the Act denied to him the equal protection of the laws and therefore contravened article 14 even though the other share holders did not join him in the application. Per MUKHERJEA J. The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right, com pels the inference that they are applicable only to natural persons. An incorporated company, therefore, can come up to the Supreme Court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but as the company and its shareholders are in law separate entities, it would not be open to an individual shareholder to complain of a law which affects the fundamental right of the company except to the extent that it constitutes an infraction of his own rights as well. In order to redress a wrong to the company the action should prima facie be brought by the company itself. Article 32 of the Constitution is not directly concerned with the determination of the constitutional validity of particular enactments, what it aims at is the enforcement of fundamental rights guaranteed by the Constitution and to make out a case under the Article it is incumbent on the petitioner to establish not merely that the law complained of is beyond the competence of the Legislature but that it affects or invades his fundamental rights guaranteed by the Constitution, of which he could seek enforcement by an appropriate writ or order. Under article 32 the Supreme Court has a very wide discre tion in the matter of framing writs to suit the exigencies of particular cases and an application under the article cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for. In the context in which the word "acquisition" is used in article 31 i2) it means and implies the acquiring of the entire title of the expropriated owner whatever the nature or extent of that right might be, 873 The guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. It means only that there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. Quaere : Whether the word "property" in article 31 means the totality of the rights which the ownership of the property connotes, and whether clause (1) of article 31 contem plates only confiscation or destruction of property in exercise of what are known as police powers in American law for which no compensation is necessary. DAS J. The question whether an Act has deprived a person of his "property" must depend on whether it has taken away the substantial bulk of the rights constituting his property. Where the most important rights possessed by the shareholders of a company are still preserved by an Act even though certain privileges incidental to the ownership of the shares have been put in abeyance, the shareholders cannot be said to have been deprived of their "property" in the sense in which that word is used in article 19(1) (f) and article 31. If on the face of the law there is no classification at all, or at any rate none on the basis of any apparent dif ference specially peculiar to the individual or class af fected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of the law itself, that it is actually and palpably unreasonable and arbitrary and thereby discharging the initial onus. The right to vote, to elect directors, to pass resolu tions and to present an application for winding up, are privileges incidental to the ownership of a share, but they are not by themselves apart from the share, "property" within the meaning of article 19 (1) (f) and article 31; and even assuming that they are "property" such rights cannot be said to have been acquired or taken possession of by the Govern ment in this case within article 31 (2). The language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it and in such a case no question payment of compensation arises. FAZAL ALI MUKHERJEA and DAS JJ. Except in the matter writs in the nature of habsas corpus no one but those whose rights are directly affected by a law can raise the question of the constitutionality of a law and claim relief under article 39. A corporation being a different entity from the shareholders, a 112 874 share holder cannot complain on the ground that the rights of the company under articles 19 (1) (f) or 31 are infringed. FAZL ALl J. A classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must hear a reasonable and lust relation to the things in respect of which it is proposed. But the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. Though article 14 lays down an important fundamental 'right, which should be closely and vigilantly guarded, a doctri naire approach which might choke all beneficial legislation should not be adopted, in construing it. i A.K. Gapalan vs The State ([1950] S.C.R. 87), Minister of State for the Army vs Dalziel ; , Yick Wo vs Hopkins , Southern Railway Co. vs Greene ; , Gulf C. & S.F. Co. Ellis ; , Middle ton vs Texas Power and Light & Co. ; , Badice vs New York (264 U.S. Pennsylvania Coal Co. vs Mahon (960 U.S. 3931, McCabe vs Archison ; , Jeffrey Manufactur ing Co. vs Blang , Newark Natural Gas and Fuel Co. vs City of Nework U.S 403), Truax vs Raich (939 U.S. 33), Buchanan vs W 'arley ; Darnell vs The State of Indiana , Lindely vs Natural Carbonic Gas Co. , and Barbier vs Connolly ; referred to.

Civil Appeal No. 1960 of 1980 From the Judgment and Order dated 23.7.1980 of the Punjab & Haryana High Court in C.R. No. 904 of 1980 624 Mrs. Urmila Kapur and S.N. Agarwala for M/s. B.P. Maheshwari & Co. for the Appellant. S.K. Mehta, M.K. Dua, Aman Vachhar and E.M.S. Anam for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The Ist Respondent Om Parkash is the landlord of a building situated in Ferozpur Jhirka, District Gurgaon in the State of Haryana. He had leased out the said premises in favour of one Musadi Lal for a commercial purpose. After Musadi Lal took the premises on lease he sub let the premises in favour of Med Ram Respondent No. 2 without the written consent of the landlord Om Parkash. Thereupon Om Parkash filed a petition for eviction against Musadi Lal and Med Ram before the Rent Controller, under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (Act No. 11 of 1973) (hereinafter referred to as 'the Act ') on the ground mentioned in section 13(2) (ii) (a) of the Act which entitled the landlord to file a petition for eviction where the tenant had after the commencement of the Act without the written consent of the landlord transferred his right under the lease or sub let the building. Musadi Lal and Med Ram, the tenant and the alleged sub tenant respectively were impleaded as the respondents to the petition. During the pendency of the petition Musadi Lal died. Thereupon Bal Kishan, the appellant herein, filed an application before the Rent Controller to bring him on record as the legal representative of the deceased Musadi Lal alleging that he was the adopted son of Musadi Lal. The said application was opposed by the landlord. Overruling the objections of the landlord the Rent Controller ordered that the appellant Bal Kishan should be brought on record as the legal representative of the deceased Musadi Lal. After the above order was passed Bal Kishan filed an additional written statement contending that the premises in question being non residential and commercial premises, the legal heir of a tenant could not be treated as a tenant as defined under section 2(h) of the Act and, therefore, the possession of such legal heir of a tenant would be that of a trespasser. That being the case, according to the appellant, the Rent Controller had no jurisdiction to proceed with the case as the Rent Controller was not competent to pass a decree for possession against a trespasser. On the above ground the appellant prayed for the dismissal of the eviction petition. Overruling the said contention, the learned Rent Controller allowed the petition for eviction holding that Musadi 625 Lal had sub let the premises in favour of Med Ram, Respondent No. 2 without the written consent of the landlord. Against the judgment of the Rent Controller, the appellant filed an appeal before the Appellate Authority at Gurgaon. That appeal was dismissed. Against the judgment in that appeal, the appellant filed a revision petition before the High Court which was also dismissed. This appeal by special leave is filed against the judgment of the High Court. In this appeal also it is contended that the proceedings before the Rent Controller were without jurisdiction since the appellant was not a tenant as defined in section 2(h) of the Act because the building in question was a non residential building. That Musadi Lal was a tenant under Respondent No. 1 is not disputed. We shall assume for purposes of this case but without deciding, that the appellant Bal Kishan was not entitled to be treated as a tenant of the building in question under the Act on the death of Musadi Lal. The question for consideration is whether in the circumstances of this case the Rent Controller had lost his jurisdiction to try the case before him. Order XXII Rule 4 of the Code of Civil Procedure, 1908 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, in an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Since the action in this case related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative of the deceased Musadi Lal on record. Sub rule (2) of rule 4 Order XXII authorises any person who is brought on record as the legal representative of a defendant to make any defence appropriate to his character as legal representative of the deceased defendant. The said sub rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant had or could have raised except those which were personal to the deceased defendant or respondent. In the instant case Bal Kishan, the appellant could not have, therefore, in the capacity of the legal representative of the deceased respondent Musadi Lal who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. It is true that it is possible for the Court in an appropriate case to implead the heirs of a deceased defendant in their 626 personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title as observed in Jagdish Chander Chatterjee & Ors. vs Sri Kishan & Anr., ; The relevant part of that decision at page 854 reads thus: "Under sub clause (ii) of Rule 4 of Order 22 Civil Procedure Code any person so made a part as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title. " But in the instant case the appellant cannot claim the benefit of the above decision for two reasons. First, the appellant had not been brought on record as a respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal. Secondly, in the circumstances of this case, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller could not have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself. The observations made in the Jagdish Chander Chatterjee & Ors. case (supra) have to be confined to only those cases where the Court hearing the case has jurisdiction to try the issues relating to independent title also. The Rent Controller, who had no jurisdiction to pass the decree for possession against a trespasser could not have, therefore, impleaded the appellant as a respondent to the petition for eviction in his independent capacity. We do not, therefore, find any substance in the above plea of the appellant. Further the plea of the appellant that he was holding the property as a trespasser is also not tenable because the possession of Musadi Lal being permissive, the possession of the appellant who had succeeded to the estate of Musadi Lal as his heir could not be that of a trespasser in the circumst 627 ances of the case. He could not, therefore, resist the passing of the decree for eviction on proof of the ground in section 13(2) (ii) (a) of the Act. We agree with the findings recorded by the Rent Controller and the Appellate Authority which have been affirmed by the High Court that Musadi Lal had sub let the premises without the written consent of the landlord and, therefore, the legal representative of the tenant and the sub tenant were liable to be evicted from the premises under the Act. The appeal, therefore, fails and it is dismissed. There will be no order as to costs. M.L.A. Appeal dismissed.

The appellant was brought on record, as the legal representative of the deceased tenant during the pendency of an eviction petition. He filed an additional written statement contending that the premises in question being non residential and commercial premises, the legal heir of a tenant could not be treated as a tenant as defined under section 2(h) of the Haryana Urban (Control of Rent & Eviction) Act and therefore, the possession of such legal heir of a tenant would be that of a trespasser and, the Rent Controller had no jurisdiction to proceed with the case as he was not competent to pass a decree for possession against a trespasser. Overruling the said contention, the Rent Controller allowed the petition for eviction on the ground that the tenant had sublet the premises in favour of respondent No. 2 without the written consent of the landlord. The appellant 's appeal and the revision before the Appellate Authority and the High Court respectively failed. Dismissing the appeal by the appellant, ^ HELD: 1. The plea of the appellant that he was holding the property as a trespasser is not tenable because the possession of the tenant being permissive, the possession of the appellant who had succeeded to the estate of the tenant as his heir could not be that of a trespasser in the circumstances of the case. He could not, therefore, resist the passing of the decree for eviction on proof of the ground in section 13(ii) (a) of the Act. [525G H; 526A] 623 2. Order XXII Rule 4 of the Code of Civil Procedure 1908 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Sub rule (2) of rule 4 of Order XXII authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant had or could have raised except those which were personal to the deceased defendant or respondent. [625D G] In the instant case, since the action related to property, the right to sue did survive and the Rent Controller was right in bringing the legal representative, of the deceased tenant, on record. The appellant could not have therefore, in the capacity of the legal representative of the deceased respondent who was admittedly a tenant, raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. [625G H] 3. It is possible for the court in an appropriate case to implead the heirs of the deceased defendant in their personal capacity also in addition to bringing them on record as legal representatives of the deceased defendant avoiding thereby a separate suit for a decision on the independent title. But, in the instant case, the appellant cannot claim the aforesaid benefit for two reasons. First the appellant had not been brought on record as respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of the tenant. Secondly, even if a prayer had been made to bring the appellant on record in his personal capacity, the Rent Controller could not have allowed the application and permitted him to raise the plea of independent title because such a plea would oust the jurisdiction of the Rent Controller to try the case itself. [626E F] Jagdish Chander Chatterjee & Ors. vs Sri Kishan & Anr., ; , referred to.

Appeals Nos. 167 and 168 of 1968. Appeals from the judgment and orders dated December 20, 1966 of the Madhya Pradesh High Court in Misc. Petition Nos. 139 and 182 of 1966. I. N. Shroff, for the appellants (in both the appeals). section V. Gupte, Suresh A. Shroff, R. K. Thakur, Bhuvanesh Kumari, K. section Cooper, M. K. Cooper, J. B. Dadachanji, O. C. 611 Mathur and Ravinder Narain, for respondent No. 1 (in C.A. No. 167 of 1968). B. P. Maheshwari, for, respondent No. 1 (in C.A. No. 168 of 1968). section P. Nayar, for respondent No. 2 (in both the appeals). The Judgment of the Court was delivered by Shelat, J. By an Indenture of Lease, dated January 12, 1944, made between the then Ruler of Korea State of the one part, referred to as the lessor therein, and Sir Mukherji B. Dadabhoy, referred to as the lessee, of the other part, the lessor granted to the lessee for a term of 30 years, in consideration of payment of rents and royalties therein mentioned, a mining lease of an area measuring 5.25 sq. miles delineated on the plan annexed thereto, with liberties, powers and privileges and on terms and conditions therein set out. By cl. (2) of that Indenture, the lessee agreed to pay during the subsistence of the lease royalties at the rates and on dates set out therein. The rates of royalty varied from 5% to 25% according to the price of coal per ton extracted from the leased area, that is to say, from 4 ans. per ton if the price was Rs. 51/ per ton to 25% of the price per ton at the pit 's head if that price was Rs. 20/ or more. On the merger of the Korea State with Madhya Pradesh, into the events of which it is not necessary for the purposes of this appeal to go, the leased area became subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 53 of 1948 and the Mineral Concession Rules made thereunder on October 25, 1949. In 1952, Sir Maneckji agreed to assign the said lease and the benefits, powers and privileges thereunder provided to the respondent company. Since, under that lease, such assignment could not be made without the previous consent of the lessor and since, by that time, owing to the merger of the Korea State with Madhya Pradesh, the State of Madhya Pradesh had acquired the said area and the rights in respect of it under the said lease, an agreement was made between the State of Madhya Pradesh and the respondent company on November 6, 1952 under which the State of Madhya Pradesh granted its consent to the said assignment for the unexpired period of the said lease in consideration of the respondent company agreeing to comply with the terms and conditions of the said lease including I payment of royalties to the State Government as provided therein. That meant that the respondent company had to pay henceforth royalty to the State of Madhya Pradesh as the lessor at the rates provided in the original lease. 612 An unexpected development in the meantime took place. Under an industrial award, called the Mazumdar Award, published on May 25, 1956, increased wages were awarded to colliery workers. To meet the consequent increased expenditure which the collieries had to incur, the Government of India proportionately increased the controlled coal price. A representation made by the respondent company to the Government of India, dated October 5, 1956 shows that the increase in respect of the coal extracted by the respondent company was from 14.6.0 and Rs. 15.6.0 to Rs. 17.6.0 and Rs. 18.6.0 per ton. That increase, however, resulted in the respondent company having to pay royalty at an increased rate since the rate of royalty payable by the company was on graded slabs varying according to the price of coal at the pit 's head. The company 's representation, therefore, was that the royalty payable by it should be modified so as to bring it in consonance with that payable under the 1948 Act read with the Mineral Concession Rules, 1949 and the First Schedule thereto, namely, at a fixed rate of 5% of the f.o.r. price subject to the minimum of 8 ans. per ton. (rule 41 (1) (a)). The Government of India referred the respondent company to the State Government and advised it to make a similar representation to that Government. Thereafter correspondence went on between the Government of Madhya Pradesh and the respondent company for a considerable time. The State, Government, however, was not agreeable to modify the terms of the said lease and to bring the royalty payable thereunder in consonance with r. 41 of 1949 Rules and the First Schedule thereto. On December 28, 1957, Parliament passed the Mines and Minerals (Regulation and Development) Act, 67 of 1957 under its power under Entry 54 of List I of the Seventh Schedule to the Constitution. Before the Act was brought into force by a notification as provided by section 1(3) thereof, an amending Act, being Act 15 of 1958, was passed on May 15, 1958, By a notification dated May 29, 1958, the Central Government brought into force the Act with effect from June 1, 1958. As its long title recites, the Act was passed to provide for the regulation of mines and the development of minerals under the control of the Union. 2 declared that it was in the public interest that the Union should take under its control the regulation of mines and the development of minerals. 6 and 8 provided for the period and the area in respect of which mining leases henceforth could be granted. 9(1) provided that a lessee under a mining lease granted before the commencement of the Act shall pay royalty at the rate for the time being specified in the Second Schedule. Its sub sec. 2 provided that a lessee under a lease granted on or after the commencement of the Act 613 shall likewise pay royalty in respect of any mineral removed by him from the area leased to him at the rate for the time being. specified in the Second Schedule in respect of that mineral. Sub sec. (3) authorised the Central Government to amend the rates of royalty specified in the Second Schedule, but not so as to exceed twenty per cent. of the sale price at the pit 's head. Under item (1) of the Second Schedule, royalty payable in respect of coal was the same as under r. 41 of the Mineral Concession Rules, 1949, that is, 5% of the f.o.r. price, subject to a minimum of fifty naye paise per ton. The effect of sec. 9 was that the rate of royalty was enhanced in the case of those lessees, who, under the leases obtained by them before the commencement of the Act, were paying at a rate lesser than 5%, while the royalty payable by lessees similarly placed was reduced if they were paying royalty at a higher rate. Under sec. 9(1) read with the Second Schedule, the respondent company would have been required to pay royalty at the reduced, rate of 5 % instead of at the rates varying from 5 % to 25 % according as the price fluctuated from time to time. Sec. 1 6 provided that all mining leases granted before October 25, 1949 should, as soon as may be, after the commencement of the Act, be brought into conformity with the provisions of the Act and the Rules made under sees. 13 and 18. The Amending Act, 15 of 1958, by its sec. 2, inserted into the Act sec. 30A with retrospective effect. That section reads as under "Notwithstanding anything contained in this Act, the provisions of sub section (1) of section 9 and of sub section (1) of section 16, shall not apply to or in relation to mining leases granted before the 25th day of October, 1949, in respect of coal, but the Central Government, if it is satisfied that it is expedient so to do, may, by notification in the Official Gazette, direct that all or any of the said provisions (including any rules made under sections 13 and 18) shall apply to or in relation to such leases subject to such exceptions and modifications, if any, as may be specified in that or in any subsequent notification. " The section falls into two parts. Under the first part, the operation of sections 9(1) and 16(1) was suspended as far as pre 1949 mining leases for coal were concerned. The second part, however, empowered the Central Government, on its satisfaction that it was expedient to do so, to direct that all or any of those provisions, including rules made under sees. 13 and 18, should apply to such leases subject to such exceptions and modi 614 fications, if any, as might be specified in that or any subsequent notification. The "exceptions and modifications" which might be so specified in the notification would obviously be in regard to the application, when such application was decided upon, of sees. 9(1) and 16(1) and the relevant rules. As a result of the suspension of the operation of sec. 9(1), and consequently of the Second Schedule, the respondent company remained liable to pay under its lease royalty at the graded rates provided therein which, in consequence of the increase in the controlled price of coal, came to more than 5% prescribed by the Second Schedule. On December 29, 1961, the Central Government issued a notification in exercise of its power under the second part of sec. 30A, by which it directed application of sec. 9(1) with immediate effect to or in relation to the pre 1949 coal mining leases " subject to the modification that the lessee shall pay royalty at the rate specified in any agreement between the lessee and lessor or at 2 1/2% of f.o.r. price, whichever is higher, in lieu of the rate of royalty specified in respect of coal in the Second Schedule to the said Act. " The respondent company would have been, under this notification, liable to pay royalty at the rate of 5% under the Second Schedule. The question is whether the said modification made any difference. It appears that the respondent company continued to press the Central Government to modify and reduce the royalty pay able by it under its lease. This is seen from the Central Government 's letter, dated July 4, 1962, by which it informed the company in reply to the company 's letter of May 21, 1962 that the question of the rate of royalty payable, by the colliery was, in consultation with the State Government, under consideration and that action in that connection would shortly be taken. It would seem that as a result of the company 's representations and consultation by the Central Government with the State Government, the latter issued an order, dated September 23, 1963 to the Collector, Surguja, directing him to recover from the respondent ,company royalty at the rate of 5% with effect from July 1, 1958 subject to the condition that the royalty amount should not be less than Rs. 2,47,000/ per year. The Government, however, directed the Collector to recover the outstanding royalty due for the period prior to July 1, 1958 at the old rates, that is, as provided by the lease. The State Government, however, changed its mind later on, for, by its order dated October 1, 1965 it partially suspended its order of September 23, 1963 and directed the Collector to recover royalty as from December 29, 1961 at the rates prescribed under the lease "in accordance with the Government of 615 India 's notification No. S.O. 30, dated 29th December, 1961". Representations by the respondent company to the State Government to charge royalty at 5% proved futile. However, on January 1, 1966, the Central Government issued a notification under which it directed the lessees of pre 1949 leases to pay royalty at 5% of the f.o.r. price. Thereupon, by its order, dated February 11, 1966, the State Government issued instructions to the Collector to charge royalty at that rate with effect from 1st of January, 1966. The controversy between the parties, therefore, is confined to the rate of royalty at which the company was liable to pay royalty for the period between December 29, 1961 and December 31, 1965. On January 25, 1966, the Collector served upon the respon dent company demand notices to pay the arrears of royalty for the aforesaid period at the rates provided in the lease. The company thereupon filed a revision before the Central Government under the Mineral Concession Rules, 1960. That revision was pending when the company filed a writ petition in March 1966 in the High Court of Madhya Pradesh for quashing the said order, dated October 1, 1965, the rejection of its representation by the State Government, dated November 19, 1965 and the said demand notices. The respondent company urged that the purpose of suspending operation of section 9(1), till a notification applying it was issued by the Central Government, was not to burden lessees under pre 1949 leases with royalty at the rate of 5% of the f.o.r. price for the time being prescribed in the Second Schedule, and that even when a notification applying sec. 9 was to be issued, the Central Government was empowered to direct that that section, the Second Schedule and the Rules made under sees. 13 and 18 would apply with such exceptions and modifications as may be specified in such or any subsequent notification. Such exceptions and modifications had to be and were intended to cushion or soften the burden which would otherwise fall on the lessees under sec. 9(1) and the Second Schedule, and therefore, any modification or exception which would be specified in such notification was intended to reduce rather than increase the rate of royalty payable under sec. The contention, therefore, was that the notification, dated December 29, 1961 could not be read to mean that lessees, such as the respondent company, whose leases provided for royalty at a rate higher than 5% were to pay royalty at a rate higher than the one provided under sec. The State Government, on the other hand, urged that the language of the notification was clear and provided treat such lessees were to pay royalty either at the rate provided in their leases or if the rate provided therein was less than 2 1/2% at that rate, whichever was 616 higher. Therefore, oil a plain construction of the words of the notification, the respondent company was bound to pay royalty at the rates provided in its lease, that being higher than the minimum of 2 1/2% provided in the notification. The High Court rejected the contention raised by the State as being inconsistent with the purpose for which sec. 30A was introduced. The High Court observed : "In our view, the true construction and effect of the notification dated 29th December 1961 is that in regard to coal mining leases granted before 25th October 1949 if the rate of royalty stipulated in the lease was higher than 5% of f.o.r. price per ton, then the royalty payable from 29th December 1961 in respect of coal removed from the leased area after that date would be the one specified on that date in the Second Schedule, namely, 5 per cent of f.o.r. price per ton; in relation to leases where the rate of royalty stipulated in less than 5 per cent but more than 2 1/2 per cent of f.o.r. price per ton, the rate of royalty would be the one specified in the lease agreement; and in respect of leases where the rate of royalty specified was less than 2 1/2 per cent of f.o.r. price per ton, the rate would be 2 1/2 per cent of f.o.r. price per ton from 29th December 1961. It follows from this that the petitioner company which was, under the terms of its lease liable to pay royalty at a rate higher than 5 per cent of f.o.r. price per ton for the period from 29th December .1961, is rightly entitled to claim that under the notification dated 29th December 1961, it cannot be called upon to pay royalty from 29th September 1961 at the rate stipulated in the lease granted to it but only at the rate of 5 per cent of f.o.r. price per ton specified in the Second Schedule. " The High Court also rejected the State 's contention as regards its order dated September 23, 1963 that once the said notification was issued, the State Government could not charge royalty at a rate lower than the one prescribed in the said notification, and that therefore, the State acted properly in rescinding its said order. The High Court held that order amounted to a modification of the terms of the lease in consideration of the lessee guaranteeing payment of the minimum amount of Rs. 2.47,000/ a year, which the State Government was competent to make, and that therefore, it had no right to rescind it unilaterally. On this view, it held that the company 's liability for royalty as from December 29, 1961 would be at the reduced rate of 5% of the f.o.r. price and not as provided by the original lease deed. 617 As against these conclusions, counsel for the State took us through the terms of the lease and the provisions of the Act, and in particular sees. 9 and 30A, and formulated three contentions for consideration. These were, (1) that the High Court erred in construing the relevant provisions of the Act and particularly sec. 30A, (2) that it also erred in construing the said notification, and (3) that the order of the State Government of September 23, 1963 was erroneous having regard to the said notification which fixed the rate of royalty payable by the lessees under the pre 1949 1eases, and that order being inconsistent with the notification had to be rescinded. by its subsequent order of November 19, 1965. Counsel urged that upon precision of its order dated September 23, 1963, the State Government was entitled to recover royalty as from the date of the said notification at the rate agreed to in the lease or at 2 1/2%, whichever was higher. Therefore, the said demand notices were valid and had to be complied with. It is well known that prior to the enactment of the 1948 Act, ' leases of mining areas had been granted by diverse authorities on different terms and conditions. The rate of royalty under those leases were inevitably divergent and were often fixed at very low rates. The purpose of enacting the 1948 Act was to bring about uniformity in such leases and with that lend that Act had made provisions for power to modify the terms and conditions both in regard to the area and the period under such leases. The object of such provisions was to regulate in a systematic and scientific manner development of mining and minerals. Though under the Constitution that subject was left to the States, a power was carved out by entry 54 in List I for the exclusive exercise of it by the Centre. The consequence was 'the enactment of Act 67 of 1957 which was brought into operation from June 1, 1958. The purpose of passing that Act is clearly seen from the declaration required under entry 54, List I, in sec. 2, namely, that it was necessary for the Union to take under its control regulation of mines and the development of minerals. In pursuance of that object the Act made provisions with regard to the persons to whom prospecting licences and mining leases should be granted (sections 4 and 5), the maximum area for which such licences and leases should be granted (section 6), and the period for which a mining lease should be granted (section 8). In order that uniformity in leases granted before and after the commencement of the Act could be attained, power was also conferred to bring all mining leases granted before October 25, 1949 into conformity with the provisions of the Act and the Rules made thereunder. (sections 16, 17 and 18). As regards royalty payable by the lessees under diverse kinds of leases for different minerals granted before October 25, 1949 uniformity was sought to be brought about sec. 618 In the 1948 Act the Central Government had the power to make rules for, regulating the grant of mining leases, or for prohibiting the, grant of such leases in respect of any mineral including the power to make rules as regards the terms upon which and the conditions subject to which such leases would be granted. (section 5) Under sec. 7 of that Act, the Central Government also could make rules for modifying or altering the terms and conditions of leases granted before the commencement of that Act, that is, before October 25, 1949. In pursuance of the power under sec. 5, the Central Government framed the Mineral Concession Rules, 1949 and provided by r. 41 thereof read with the First Schedule thereto that the rate of royalty chargeable under a lease in respect of coal would be 5% of the f.o.r. price per ton. No rules, however, were made under sec. 7, and therefore, the rate of royalty provided by r. 41 did not govern pre 1949 leases, with the result that the lessees thereunder continued to pay royalty provided in their respective leases. Such diversity in the rates of royalty was sought to be done away with by prescribing uniform rates of royalty in respect of each mineral through sec. Item 1 in the Second Schedule prescribed, in respect of coal, the rate of royalty at 5% of the f.o.r. price subject to a minimum of fifty naye paise per ton. The result of section 9 and item I in the Second Schedule was that all lessees whether their leases were granted before or after the commencement of the Act became liable to pay royalty at the uniform rate of 5% in respect of coal. Since under the 1948 Act the lessees, whose leases were granted on and after the commencement of that Act, were liable to pay royalty at 5% under r. 41 of the 1949 Concession Rules, sec. 9 did not make any difference to them as it prescribed the same rate. But so far as lessees under the pre1949 leases were concerned, the new rate affected them, inasmuch as those, who, under their leases were paying at a lesser rate became liable to pay royalty at 5%, while those who were paying at a higher rate had to pay at, the lower rate of 5% only. Besides, the change in the rate of royalty under sec. 9, pre 1949 leases were liable to be modified in respect of the area and the period under sec. 16 and the rules made under secs. 13 and 18. Even before the new Act was brought into force, consequences of enforcing such uniformity and the resultant automatic spurt in the rate of royalty, especially in respect of coal, had been realised. The Central Government, therefore, itself sponsored the insertion of sec. 30A by sec. 2 of the Amendment Act, 15 of 1958, with retrospective effect. The consequences flowing from the attempted uniformity were set out in the Statement of Objects and Reasons(1) for amending the Act. The statement acknowledged (1) Gazette of India, Extra., Part , Jan. July, 1958, p. 507. 619 that coal, as the basic fuel, occupied a unique position in the country 's economy and had always, therefore, been treated differently from other minerals. It also acknowledged that operation of secs. 9 and 16 would have "numerous desirable consequences" such as unsettling coal industry as a whole and retarding the programme of coal production estimated in the, Second Five Year Plan on account of the sudden and automatic rise in the royalty payable by lessees, who under their leases granted before October 25, 1949 generally had to pay royalty "much below the rate" prescribed under the Second Schedule. A similar anxiety was also expressed during the passage of the Amendment Bill by the concerned Minister stating that if the automatic enhancement under sec. 9(1) in the rate of royalty at 5% were to be implemented, the results would be unfortunate. For, besides affecting the rate of production of coal, it would also adversely affect the price structure in other industries, such as cement, steel and other similar industries, and that for that reason "by this Amending Bill that mistake is sought to be rectified". "Instead of giving those increases automatically power will not be taken to phase them in such a way that the upward revision is not pushed up to the maximum limit (i.e. five per cent.) with one jerk, but it is so phased that it does not cause any upset in the coal production programme and in the economy of the country as a whole".(1). The mischief which the Amending Act, 1958 sought to avoid was thus to prevent enhancement of royalty at one stroke to 5%. As aforesaid, sec. 30A suspended the application of secs. 9(1) and 16(1) in relation to pre 1949 leases and authorised the Central Government to direct that all or any of the said provisions (including rules made under secs. 13 and 18) shall apply to or in relation to such leases subject to such exceptions and modifications, if any, as may be specified in a notification. As a result of the suspension of Sec. 9(1), lessees under pre 1949 leases were relegated to the original position under which they were liable to pay royalty at rates agreed to in those leases whether the rate was over or below 5% provided by sec.9(1). As and when the Central Government issued the notification envisaged by the second part, such lessees would be obliged to pay royalty at the rate of 5% as prescribed for the time being in the Second Schedule, and even if the Government were, in the meantime, to enhance the rate as authorised by sec. 9(3) upto the maximum rate of 20% at such rate but never more than 20%. The second part thus contemplated payment of royalty, on sec. 9(1) being made applicable, at the most, at the rate of 5% only, as no increase had till. then been made under sec. (1) Rajya Sabha Proceedings, dated November 620 On December 29, 1961, the Central Government "in exercise of the powers conferred by sec. 30A" issued the notification directing that the provisions of sub sec. (1) of sec. 9 of the said Act shall apply with immediate effect to or in relation to pre 1949 coal mining leases, subject to the modification that such lessees shall pay royalty at the rate specified in the agreements between the lessees and the lessors or at 2 1/2% of f.o.r. price, whichever was higher, "in lieu of the rate of royalty specified in respect of coal in the Second Schedule to the said Act". The argument urged on behalf of the State both before the .High Court and before us was that the notification clearly envisaged payment of royalty at the rate agreed to between the lessor ,and the lessee or at 2 1/2% whichever was higher. Since, the agreement in the present case provided for royalty at graded rates which were higher than 21%, the company had to pay royalty at such agreed rates. The argument, in our opinion, is untenable :as it is not borne out by the language of the notification itself and of sec. 30A and was therefore rightly repelled by the High Court. The notification was issued, as it recites, in exercise of the powers conferred by sec. 30A. That power was to apply, by issuing a notification thereunder, sees. 9(1) and 16(1) and the rules made under sees. 13 and 18. The notification in terms directed the application of sec. 9(1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub section read with the Second Schedule, that is, at 5%. The notification, however, applied sec. 9(1) subject to one modification, namely, that lessees under the pre1949 leases were to pay royalty at, the rate provided in their leases or at 21% whichever was higher. The modification was to the rate applicable under sec. 9(1) and the Second Schedule, that is, to the rate of 5%. Considering the object with which sec. 30A was enacted, viz., to phase the rate of 5%, and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with sec. 9(1) and the Second Schedule, that is, at ,the rate higher than 5% provided thereunder. Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under sec. 30A and also in contravention of the language of sec. 9(1) and the Second Schedule. A modification, if any, would be for charging royalty at a rate lesser than the one provided under sec. 9 (1 ) and the Second Schedule, and not at a rate higher than such rate. A construction to the contrary would mean exercise of power in excess of that conferred by the section and would affect the validity of the notification. A literal meaning which the State canvassed for can, therefore, be accepted only at the cost of invalidating the notification. 621 The rule of construction that a court construing a provision of law must presume that the intention of the authority making it was not to exceed its power and to enact it validly is well settled. Where, therefore, two constructions are possible, the one which sustains its validity must be preferred. On a plain reading of the notification, however, it is clear that what it meant was that instead of the rate flowing from the application of sec. 9(1) and the Second Schedule, a modified rate should be applied, that is, "in lieu of the rate of royalty" specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5%, or at 2 1/2% minimum, whichever was higher. The notification, thus, did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under sec. 9(1) and the Second Schedule which provided 5% only. It appears that the State Government itself understood such a construction as proper, for, if it had understood otherwise, it would not have issued its order dated September 23, 1963 directing the Collector to recover royalty at 5% pursuant to the correspondence which had ensued between the company, the Central Government and the State Government. If it had understood the notification in the manner now urged by its counsel, it would have at once pointed out both to the company and the Central Government in that correspondence that it was entitled to recover royalty at the rates agreed to in the lease instead of at 5 %. It was only in 1965 that it changed its mind and cancelled its previous order. On the construction placed by us on sec. 30A and the said notification, it was not entitled so to do. The High Court, in our view, was right in quashing that order as also the demand notices issued in pursuance of that order. In view of our decision on the question of construction of the notification and sec. 30A, it becomes unnecessary to consider the second contention raised by the company 's counsel that the order of 1963 amounted to a modification of the terms of the lease, and that therefore, the State Government could not unilaterally supersede such modification by issuing a subsequent order in 1965. For the reasons aforesaid, we are in agreement with the High Court 's conclusions. Civil Appeal No. 168 of 1968 involves the same question and our decision in that appeal, must, therefore, be governed by the decision in this appeal. Both the appeals, therefore, fail and are dismissed with costs. 'Mere will, however, be one set of hearing costs as the arguments in both the appeals have been common. G.C. Appeals dismissed.

In 1944 the Ruler of the erstwhile Indian State of Korea granted to D a mining lease in respect of an area of 5.25 sq. miles in the State. According to the terms of the lease the rates of royalty varied from 5% 0 25% according to the price of the coal per tons extracted from the eased area, that is to say, from 4 as. per ton if the price was Rs. 51 per .on to 25% of the price per ton at the pit 's head if that price was Rs. 20/or more. On the merger of the Korea State with Madhya Pradesh the leased area became subject to the provisions of the Mines & Minerals (Regulation and Development) Act 53 of 1948 and the Mineral Concorde Rules, 1949. , In 1952 D assigned the lease and its benefits to the respondent company. The State of Madhya Pradesh granted its consent to the assignment for the unexpired period of the lease in consideration of the respondent company agreeing to comply with the terms and conditions of the lease including payment of royalties ' On December 28, 1967 Parliament passed the Mines & Minerals (Regulation and Development) Act 67 of 1957 under its power under Entry 54 of List I of the Seventh Schedule to the Constitution. The Act as amended by Act 15 of 1958 was brought into force by a notification of the Central Government with effect from June 1, 1958. Under section 9(1) of the Act a lessee under a mining lease granted before the commencement of the Act was liable to pay royalty at the rate for the time being specified in the Second Schedule. Under item (1) of the Second Schedule royalty payable in respect of coal was the same as under r. 41 of the Mineral Concession Rules, 1949, that is, 5% of the f.o.r. price, subject to. a minimum of fifty naye paise per ,on. Under section 30A which had been inserted by Act 15 of 1958 with re trospective effect, the provisions of section 9(1) and section 16(1) were not applicable to mining leases granted before 25th October 1949 in respect of coal, but the Central Government bad power if satisfied that it was expedient to do so, to direct by notification in the Official Gazette, that all or any of the said provisions (including rules made under sections 13 and 18) shall apply to or in relation to such leases "subject to such exceptions and modifications, if any, as may be specified in that or in any subsequent notification". On December 29. 1961 the Central Government issued a notification in exercise of its power under the second part of section 30A by which it directed application of section 9(1) with immediate effect to or in relation to the pre 1949 coal mining leases "subject to the modification that the lessee shall pay royalty at the rate specified in any agreement between the lessee and the lessor or at 2 1/2% of f.o.r. price, whichever is higher, in lieu of the rate of royalty specified in respect of coal in the Second Schedule to the said Act. " The Collector served upon the respondent company demand notices to pay the arrears of royalty for the period December 29, 1961 to December 31, 1965 at the rates specified in the lease. The com 610 pany in a writ petition before the High Court urged that the exception; and modifications under section 30A had to be and were intended to cushion of soften the burden which would otherwise fall on the lessees under section 9(1) and the Second Schedule and therefore any modification or exception which would be specified in such notification was intended to reduce rather than increase the rate of royalty payable under section 9(1). The State Government contended that the respondent company was bound to pay royalty at the rates provided in its lease, that being higher than the minimum.or 2 1/2% provided in the notification. The High Court rejected the contention raised by the State as being inconsistent with the purpose for which section 30A was introduced. The State appealed. HELD : The notification was issued in exercise of the powers con feared by section 30A. That power was to apply by issuing a notification there% under, sections 9(1) and 16(1) and the rules made under sections 13 and 18. The notification in terms directed the application of section 9(1) which meant that on and from December 29, 1961 the company would have to pay royalty as prescribed under that sub section read with the Second Schedule, that is, at 5%. The notification however applied section 9(1) subject to one modification, namely. that the lessees under the pre 1949 leases were to pay royalty at the rate provided in their leases or at 21% whichever was higher. The modification was to the rate applicable under section, 9(1) and the Second Schedule, that is, to the rate of 5%. Considering the object with which section 30A was enacted viz. to phase the rate of 5% and not to impose it at one stroke, the modification could not mean recovery at a rate inconsistent with section 9(1) and the Second Schedule. that is, at the rate higher than 5% provided thereunder. [620 D F] Such a modification, if it were to be construed as meaning payment at a rate higher than 5% would be in excess of the power under section 30A and also in contravention of the language of section 9(1) and the Second Schedule. A lateral meaning which the State canvassed for could therefore be accepted only at the cost of invalidating the notification. Where two constructions are possible the one which sustains the validity of the law must be preferred. [620 G H; 621 A] On a plain reading of the notification it was clear that what it meant was that instead of the rate flowing from the application of section 9(1) and the Second Schedule, a modified rate should be applied, that is, 'in lieu of the rate of royalty ' specified in the Second Schedule, royalty at the agreed rate should be charged if it was lower than 5% or at 21% minimum, whichever was higher. The notification thus did not empower the State Government to recover royalty at a rate higher than 5% in lieu of the rate chargeable under section 9(1) and the Second Schedule which provided 5% only. [621 B C] The High Court was therefore justified in quashing the impugned orders also the demand notices issued in pursuance of that order.

ns Nos. 182 of 1969 and 42 to 45 of 1968. Petition under article 32 of the Constitution of India for enforcement of the fundamental rights. D. M. Parulekar and A. G. Ratnaparkhi, for the petitioners (in W.P. No. 182 of 1969). section section Shukla, for the petitioners (in W.P. No. 42 to 45 of 1968. section T. Desai, G. L. Sanghi, B. D. Sharma for section P. Nayar, for respondents Nos. 1 to 3 (in W.P. No. 182 of 1969) and the respondents (in W.P. Nos. 42 to 45 of 1968). The Judgment of the Court was delivered by Ray, J. These petitioners raise two principal questions. First, whether the State of Maharashtra (hereinafter referred to as the State) is competent to enact the Maharashtra Industrial Development Act, + 1961 (hereinafter referred to as the Act): secondly, whether there is procedural discrimination between the Maharashtra Industrial Development Act, 1961 and the Land Acquisition Act, 1894, 721 The contentions of the petitioners are that. the Act is for the incorporation, regulation and winding up of the Maharashtra Development Corporation (hereinafter referred to as the Corporation) and that the Corporation is a trading one and therefore the impugned legislation falls within Entry 43 of List I of the Seventh Schedule of the Constitution. On behalf of the State it is said on the other hand that the Act is for the growth and development of industries in the State of Maharashtra and for acquisition of land in that behalf and the Corporation is established for carrying out the purposes of the Act, and, therefore,the legislation is valid. The true character,scope and intent of the Act is to be ascertained with reference to the purposes and the provisions of the Act. The Act is one to make a special provision for securing the orderly establishment in industrial areas and industrial estates of industries in the State of Maharashtra, and to assist generally in the Organisation thereof, and for that purpose to establish an Industrial Development Corporation, and for purposes con nected with the matters aforesaid. The Corporation is established for the purpose of securing and assisting the rapid and orderly establishment and organisation of industries in industrial areas and industrial estates in the State of Maharashtra. The Corporation consists of 8 members, two of whom are nominated by the. State Government of whom one shall be the Financial Adviser to the Corporation, one member nominated by the State Electricity Board, one member nominated by the Housing Board and three members nominated by the State Government, from amongst person appearing to Government to be qualified as having had experience of , and having shown capacity in, industry or trade or finance or who are in the opinion of the Government capable of representing the interest of persons engaged or employed therein, and the Chief Executive Officer of the Corporation, who shall be the Secretary of the Corporation. The functions of the Corporation shall, be generally to promote and assist in the rapid and orderly establishment, growth and development of industries in the State of Maharashtra and to establish and manage industrial estates at places selected by the State Government, develop industrial areas selected by the State Government for the purpose and make them available for undertakings to estab lish themselves, assist financially by loans industries to move their factories into such estates or areas, and to undertake schemes or works, either jointly with other corporate bodies or institutions, or 69Sup. CI(P)71 2 722 with Government or local authorities, or on agency basis, in furtherance of the purposes for which the Corporation is established and all matters connected therewith. An industrial area under the Act means any area declared to be an industrial area by the State Government by notification in the Official Gazette which is to be developed and where industries are to be accommodated. An industrial estate under the Act means any site selected by the State Government, where the Corporation builds factories and other buildings and makes them available for any site selected by the State Government, where the Corporation means the carrying out of building, engineering, quarrying or other operations in, on, over or under land, or the making of any material change in any building or land, and includes redevelopment, but does not include mining operations. Amenity under the Act includes road, supply of water or electricity, street lighting, drainage, sewerage, conservancy and such other conveniences as the State Government may by notification in the Official Gazette specify to be an amenity for the purposes of the Act. We have referred to these expressions, industrial area, industrial 'estate, development and amenity in order to appreciate the general powers of the Corporation to discharge the functions of the Corporation in regard to the establishment, growth and development of industries, in the State. These powers are to acquire and hold property, movable and, immoveable for the performance of any of its activities, and to lease, sell, "change or otherwise trans fer any property held by the Corporation on such conditions as may be deemed proper by the Corporation and also to purchase by agreement or to take on lease or under any form of tenancy any land, to erect such buildings and to "execute such other works as may be necessary for the purpose of carrying out its duties and functions, to provide or cause to be provided amenities and common facilities in industrial estates and industrial areas and construct and maintain or cause to be maintained works and buildings therefore, to make available buildings on hire or sale to industrialists or persons intending to start industrial undertakings, to construct buildings for the housing of the employees of such industries, to allot factory sheds or such buildings or parts of buildings, including residential tenements to suitable persons in the industrial estates established or developed by the Corporation, and to, do such other things and perform such acts as it may think necessary or expedient for the proper conduct of its functions, and the carrying into effect the purposes of this Act. Broadly stated 'the functions and powers of the Corporation are to develop industrial areas and industrial estates by providing. amenities of Toad, supply of water or electricity, street,. lighting, 723 drainage, sewerage, conservancy and other conveniences, secondly to construct works and buildings, factory sheds and thirdly, to make available buildings on hire or sale to industrialists or persons intending to start industrial undertakings and to allot factory sheds, buildings, residential tenements to suitable persons in industrial estates established or developed by the Corporation and to lease, sell, exchange or otherwise transfer any property held by the Corporation on such conditions as may be deemed proper by the Corporation. The development of industrial areas and industrial estates is intended to serve two objects. In the first place, there is to be an orderly establishment and growth of industries in the Bombay Poona sector. The second object is to secure dispersal of industries from the congested areas of the Bombay Poona sector to the under developed parts of the St ate. The industrial areas are broadly classified into two categories, namely, first, those meant for engineering and other industries which are not obnoxious, and, secondly, those meant for chemical industries. The establishment and growth of industries in the State is inextricably bound up with availability of land. Available land in limited. Such limited supply leads to speculation in land. Power is therefore required for compulsory acquisition of land to achieve the purposes of the Act. At the same time, land owners are not to be deprived of the legitimate benefit of reasonable increase in land values in a developing economy. Development of chemical industries requires long stretches of pipelines to be laid for moving gas and other liquid , chemical products. The growth of industries in the State by establishment of industrial areas and industrial estates also means laying pipelines for carrying gas, water, electricity and constructing sewerage and drains. These amenities are essential. The absence of amenities is envisaged and answered in the Act by empowering the Corporation to provide these essential amenities, facilities and conveniences. The principal functions of the Corporation in regard to the establishment, growth and development of industries in the are first to establish and manage industrial, estates at selected places and secondly to develop industrial areas selected by the State Government. When industrial areas are selected the necessity of acquisition of land in those areas is apparent. The 'Act, therefore, contemplates that the, ate Government may acquire land by publishing a notice specifying the particular purpose for which such land is required. Before: the publication of the notice the owner of the land is given an opportunity, to show cause as to 724 why the land should not be acquired. The State after considering the cause shown by the owner the State Government may pass such orders as it deems fit. When a notice is published for acquisition of land, the land, shall, on and from the date of such publication, vest absolutely in the State, Government free from all en cumbrances. Where the land has be en acquired for the Corporation or any local authority, the State Government shall, after it has taken possession of the land, transfer the land to the Corporation or that local authority, for the purposes for which the land has been acquired subject to such terms and conditions which the State Government may deem fit to impose. We have already noticed that for the purpose of the Act, namely, the establishment and development of industries in the State the Corporation will establish industrial estates and develop industrial areas. Apart from establishing industrial estates and developing industrial areas the Corporation may dispose of any land acquired by the State Government and transferred to the Corporation without undertaking or carrying out any development thereof or transfer such land after undertaking or carrying out any development as it thinks fit. These powers of the Corporation with respect to the disposal of land are to be exercised so far as practicable, that where the Corporation proposes to dispose of by sale any such land without any development having been undertaken or carried ,out thereon, the Corporation shall offer the land in the first instance to the persons from whom it was acquired if they desire to purchase it subject to such requirements as to its development and use as the Corporation may think fit to impose. Against, the persons who are residing or carrying on business or other activities on any such land shall, if they desire to obtain accommodation on land belonging to the Corporation and are willing to comply with any requirements of the Corporation as to its development and use, have an opportunity to obtain thereon accommodation suitable to their reasonable requirements on terms settled with due regard to the price at which any such land has been. acquired 'from them. The other provisions in the Act are that the State Government may upon such conditions as may be agreed between the State 'Government and the Corporation, place at the disposal of the ,Corporation any land vested in the, State Government. After any such land has been developed by, or under the control and super vision of, the Corporation, it shall be dealt with by the Corporation in accordance with the regulations made, and directions given by the State Government in this behalf. Further, if Any land placed at the disposal of the Corporation is required at any time thereafter by the State Government, the Corporation shall replace 725 it at the disposal of the State Government upon such terms and conditions as may be mutually agreed upon. There are two other important provisions in the Act. In the first place, the State Government may issue to the Corporation such general or special directions as to policy as it may think necessary or expedient for the purpose of carrying out the purposes of the Act,_ and the Corporation shall be bound to follow and act upon such directions. These directions will be in the field of ' establishment and management of industrial estates and development of industrial areas and carrying out the other powers of the Corporation in regard to the provision of amenities and common facilities, and assisting industrialists or industrial undertakings in. obtaining buildings or factory sheds or residential tenements or land for development of industries. The second important provision is that when the State Government is satisfied that the purposes for which the Corporation is established under the Act have been substantially achieved so as to render the continued existence of the Corporation in the opinion of the State Government unnecessary that Government may by notification in the Official Gazette declare that the Corporation shall be dissolved with effect , from such date as may be specified in the notification and the Corporation shall be deemed to be dissolved 'accordingly. Upon such dissolution, all properties, funds and dues which are vested ' in or realisable by the Corporation shall vest in or be realised by the State Government and all liabilities enforceable against the Corporation shall be enforceable against the State Government. It is in the background of the purposes of the Act and powers and functions of the Corporation that the real and true character of the legislation will be determined. That is the doctrine of finding out the pith and substance of an Act. In deciding the pith and substance of the legislation, the true test is not to find out whether the Act has encroached upon or invaded any forbidden field but what the pith and substance of the Act is. It is true intent of the Act which will determine the validity of the Act. Industries come within Entry 24 of the State List subject to the provision of Entry 7 and Entry 52 of the Union List of the Constitution. Entry 7 of the Union List relates to industries declared by Parliament by law to necessary for the purpose of defence or for the prosecution of war. Entry 52 of the Union List relates to industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. The establishment, growth and development of industries in the State of Maharashtra do not fall within Entry 7 and Entry 52 of the Union List. Establishment, growth and development of industries in the State is within the 726 State List of industries. Furthermore, to effectuate the purposes of the development of industries in the State it is necessary make land available. Such land can be made available by acquisition or requisition. The Act in the present case deals with acquisition of land by the State and on such acquisitions the State may transfer the land to the Corporation which again may develop it itself and establish industrial estates or may develop industrial areas. Acqui sition or requisition of land falls under Entry 42 of the Concurrent List. In order to achieve growth of industries it is necessary not ,only to acquire land but also to implement the purposes of the Act. The Corporation is therefore established for carrying out the purposes of the Act. 'De pith and substance of the Act is establishment, growth and Organisation of industries, acquisition of land in that behalf and carrying out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. The powers and functions of the Corporation show in ' no ,uncertain terms that these are all in aid of the principal and predominant purpose of establishment, growth and establishment of ,industries. The Corporation is established for that purpose. When the Government is satisfied that the Corporation has substantially achieved the purpose for which the Corporation is established, the Corporation will be dissolved because the raison detre is gone. We, therefore, hold that the Act is a valid piece of legislation. The petitioners contended that the Corporation was a trading one. The reasons given were that the Corporation could sell property, namely, transfer land; that the Corporation had borrowing powers , and that the Corporation was entitled to moneys by way of rents and profits. Reliance was placed on the report of the Corporation and in particular on the income and expenditure of the Corporation to show that it was making profits. These features of transfer of land, or borrowing of moneys or receipt of rents and profits will by themselves neither be the indicia nor the decisive attributes of the trading character of the Corporation. Ordinarily, a Corporation is established by shareholders with their capital. The shareholders have their Directors for the regulation and management of the Corporation. Such a Corporation set up by the shareholders, carries on business and is intended for making profits. When profits are earned by such a Corporation they are distributed to shareholders by way of dividends or kept in reserve funds. In the present case, these attributes of a trading Corporation are absent. The Corporation is established by the Art for carrying out the purposes of the Act. The purposes of the Act are development of industries in the State. The Corporation consists of nominees of the State Government, State Electricity Board and the Housing Board. The functions and powers of the Corporation indicate 'that the Corporation is acting as I a wing of the State Government 727 in establishing industrial estates and developing industrial areas, acquiring property for those purposes, constructing buildings, allotting buildings, factory sheds to industrialists or industrial undertakings. It is obvious that the Corporation will receive moneys for disposal of land, buildings and other properties and also that the Corporation would receive rents and profits in appropriate ,cases. Receipts of these moneys arise not out of any business or trade but out of the sole purpose of establishment, growth and development of industries. The Corporation has to provide amenities and facilities in industrial estates and industrial areas. Amenities of road, electricity, sewerage and other facilities in industrial estates and industrial areas are within the programme of work of the Corporation. The fund of the Corporation consists of moneys received from the State Government, all fees, costs and charges received by the Corporation, all moneys received by the Corporation from the disposal of lands, buildings and other properties and all moneys received by the Corporation by way of rents and profits or in any other manner The Corporation shall have the authority to spend such sums out of the general funds of the Corporation or from reserve and other funds. The Corporation is to make provision for reserve and other specially denominated funds as the State Government may direct. The Corporation accepts deposits from persons, authorities or institutions to whom allotment or sale of land, buildings, or sheds is made or is likely to be made in furtherance of the object of the Act. A budget is prepared showing the estimated receipts and expenditure. The accounts of the Corporation are audited by an auditor appointed by the State Government. These provisions in regard to the finance of the Corporation indicate the real role of the Corporation, viz., the agency of the Government in carrying out the purpose and object of the Act which is the development of industries. If in the ultimate analysis there is excess of income over expenditure that will not establish the trading character of the Corporation. There are various departments of the Government which may have excess of income over expenditure. The Corporation is not a Government company within the meaning of section 617 of the nor can the ' be said to apply to the Corporation because under the provisions contained in section 616 of the that Act will apply to a company governed by any special Act except in so far as the provisions of the are inconsistent with the provisions of such special Act. The provisions of the Act in the present case in regard to incorporation, functions, powers and dissolution of the Corporation show that the purposes 728 and objects of the Act and the functions and powers of the Corporation are like the warf and weft of the fabric of development of industries by the State. There are two provisions of the Act which are not to be found in any trading Corporation. In the first place, the sums payable by any person to the Corporation are recoverable by it under this Act as an arrear of land revenue on the application of the, Corporation. Secondly, on dissolution of the Corporation the assets vest in and the liabilities become enforceable against the State Government. The underlying concept of a trading Corporation is buying and selling. There is no aspect of buying or selling by the Corporation in the, present case. The Corporation carries out the purposes of the Act, namely, development of industries in the State. The construction of buildings, the establishment of industries by ' letting buildings on hire or sale, the acquisition and transfer of land in relation to establishment of industrial estates or development of industrial areas and of setting up of industries cannot be said to be dealing in land or buildings for the obvious reason that the State is carrying out the objects of the Act with the Corporation as an agent insetting up industries in the State. The Act aims at building an industrial town and the Corporation carries out the objects of the Act. The hard core of trading Corporation is its commercial character. Commerce connotes transactions of purchase and sale of commodities, dealing in goods. The forms 'of business transactions may be varied but the real character is buying and selling. The true character of the Corporation in the present case is to act as an architectural agent of the development and growth of indus trial towns by establishing and developing industrial estates and industrial areas. We are of opinion that the Corporation is not a trading one. Counsel on behalf of the petitioners contended that there was procedural discrimination between the Land Acquisition Act and the Act in the present case. It was said that there was a special procedure designed by the Land Acquisition Act for acquisition of land for the companies whereas in the ' present case the State was acquiring land for companies without adopting the procedure of , the Land Acquisition Act. It is to be remembered that the Act in the present case is a special one having the specific and special pur pose of growth, development and Organisation of industries in the State of Maharashtra. The Act has its own procedure and there is no provision in the Act for acquisition of land for a company as in the case of Land Acquisition Act. In the present case, acquisition under the Act is for the purpose of development of industrial 729 estates or industrial areas by the Corporation or any other purpose in furtherance of the objects of the Act. The policy underlying, the Act is not acquisition of land for any company but for the one. and only purpose of development, Organisation and growth of industrial estates and industrial areas. The Act is designed to have a planned industrial city as opposed to haphazard growth of industrial areas in all parts of the State. The Act is intended to prevent ,.growth of industries in the developed parts of the State. Industries are therefore to be set up in the developing or, new parts of the State where new industrial towns will be brought into existence. The object of, the Act is to carve out planned areas for industries. On one side there Will be engineering industries and on the other there will be chemical industries. There will be localisation of industries with the result that the residents and dwellers of towns and cities will not suffer either from the polluted air or obnoxious. chemicals of industries or the dense growth of industries and industrial population, within and near about the residential areas. The Land Acquisition Act is a general Act and that is why there is specific provision for acquisition of land by the, State for public purpose and acquisition of land by the State for companies. The present Act on the other hand is designed the sole purpose of development of industrial areas and industrial estates and growth and development of industries within the State. Industrial undertakings or persons who are engaged in industries all become entitled to the ' facilities on such industrial growth. Under the Land Acquisition Act acquisition is at the instance of and for the benefit of a company whereas under the present Act acquisition is solely by the State for public purposes. The two acts are dissimilar in situations and circumstances. The petitioners contended that the provisions as to compensation were a restriction on the judicial power of the Collector. Section 33 of the Act deals with compensation. The amount of compensation under the Act can be determined by agreement between the State Government and the person to be compensated. Where on the other hand no such agreement can be reached, the State Government shall refer the case to the Collector. That is subsection (3) of section 33 of the Act. The proviso to that sub section is that no compensation exceeding such amount as the State Government may by general orders specify to b paid for such acquisition shall be determined by the Collector without the previous approval of the State Government or such officer as the State Government may appoint in that behalf. This proviso was construed on behalf of the petitioners to be a fetter on the judicial powers of the Collector to determine compensation. Subsection (5) of section 33 of ',.he Act states that in determining the amount of compensation the Collector shall be guided by the pro 730 visions contained in sections 23 and 24 and other relevant provisions of the Land Acquisition Act These provisions indicate that if the Collector will determine an amount higher than what the State Government may by general orders specify, the approval of the State Government will be necessary. There is no ceiling fixed by the Government. Finally, there is an appeal to the Court from the decision of the Collector. The decision of the Court will finally determine the amount of compensation. We are of opinion that there is no restriction on the, powers of the Collector in the matter of determination of compensation, although the approval of Government may be necessary in the Government interest. All the contentions advanced by the petitioners fail. The petitions 'are dismissed with costs. G.C. Petitions dismissed.

In a petition under article 32 of the Constitution of India the petitioners challenged the validity of the Maharashtra Industrial Development Act, 1961. In support of the petition it was contended : (i) that the Maharashtra legislature was incompetent to enact the Act because the Act was for the incorporation, regulation and winding up of the Maharashtra Development Corporation which was a trading corporation; accordingly the impugned legislation fell within Entry 43 of List I (.Union List) or the Seventh Schedule of the Constitution; (ii) that there was a special procedure designed by the land Acquisition Act for acquisition of land for the companies whereas in the present case under the provisions of the impugned Act the State was acquiring land for companies without adopting the procedure of the Land Acquisition Act and thus there was procedural discrimination; (iii) that the proviso to section 33 of the impugned Act providing that no compensation exceeding such amount as the State Government may by general order specify to be paid for acquisition shall be determined by the Collector without the previous approval of the State Government or its nominee, was restrictive of the judicial power of the Collector. HELD : (i) It is the true intent of the Act i.e. its pith and substance which will determine the validity of the Act. Industries come within Entry 24 of the State List subject to the provision of Entry 7 and Entry 52 of the Union List of the Constitution. Entry 7 of the Union list relates to industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Entry 52 of the Union List relates industries the control of which by the Union is declared by Parliament by law to be expedient in the public interest. The establishment, growth and development of industries in the State of Maharashtra does not fall within Entry 7 and Entry, 52 of the Union List. Establishment growth and development of industries in the State is within the State List of industries. The, pith and substance of the Act is establishment growth and development of industries, and acquisition of land in that behalf carries out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. 'Me powers and functions of the Corporation show in no certain terms that these are all in aid of the principal and predominant purpose of establishment and growth of industries. When the Government is satisfied that the Corporation has substantially achieved the purposes for which the Corporation is established, 720 the Corporation will be dissolved because the raison d 'etre is gone. It must, therefore, be held that the Act is a valid piece of legislation. [725 F 726 D] The contention that the Corporation was a trading one, or that it Was a Government company within the meaning of section 617 of the could not be accepted. [Reason dissussed] The true character of the Corporation in the present case is to act as an architectural agent of the development and growth of industrial towns by establishing and developing industrial estates and industrial areas. [727 B 728 F] (ii) The contention that there was procedural discrimination is between the present Act and the Land Acquisition Act could not be accepted. The Maharashtra Industrial Development Act is a special one having the specific and special purpose of growth, development and Organisation ,of industries. That Act has its own procedure. Under the Land Acquisition Act acquisition is at the instance of and for the benefit of a company whereas under the present Act acquisition is solely by the State for public purposes. 'Me two acts arc dissimilar in situation and circumstances. [728 H 729 E] (iii) The proviso to section 33 no doubt provides that where the amount of compensation determined by the Collector is higher than what the State Government may by general order specify the approval of the State Government is necessary, But sub section (5) of section 33 states that in determining the compensation the Collector shall be guided by the provisions contained in sections 23 and 24 and other relevant provisions of the Land Acquitition Act. There is no ceiling fixed by the Government. Further there is an appeal to the Court from the decision of the Collector. The decision of the Court will finally determine the amount of compensation. There is thus no restriction on the powers of the Collector in the matter of determination of compensation, although the approval of Government may be necessary in the Government interest. [729 F 730 C]

iminal Appeal No. 41 of 1969, Appeal from the judgment and order dated September 6, 1967, of the Allahabad High Court in Criminal Reference No. 265 of 1965. O. P. Rana, for the appellant. Nur ud din Ahmed and P. N. Bhardwaj, for the respondent. The Judgment of the Court was delivered by P.Jaganmohan Reddy, J. This Appeal is by Certificate against the order of the High Court of Allahabad quashing the charge framed by the Additional City Magistrate, Kanpur against the accused Respondent for offenses under Sections 78 and 79 of the 43 of 1958 (hereinafter referred to as 'the Act '). Respondent 1 to Respondent 4 are the partners of the firm M/s. Pannalal Durga Prasad of Nayaganj, Kanpur which is a firm of bullion merchants who have also been minting gold coins with a trade mark said to be similar to the one which is the registered trade mark of M/s. Habib Bank Ltd., Bombay and which was in force on the day when the alleged offence is said to have been committed. On 24th October 1962 the Inspector of Trade Marks on behalf of the Director of Industries wrote a letter to the Additional City Magistrate I, Kanpur that M/s. Habib Bank Ltd., Bombay which is one of the foremost refiners of gold has been producing coins and pieces of gold of various shapes and sizes for sale commonly known as under a distinct trade mark, the most striking feature of which has always been a device of a lion holding a sword with his forearm against the back ground of a rising sun. This device of lion is with the word 'Habib Bank Ltd. ' above it and 'Shuddha Sonu ' below it in Gujarati script with a dotted circle along the border on the face of the device of a coin and a wreath 'along the border on the other face with the words 'Habib Bank Ltd., contained in the upper half and 'Pure Gold ' in the lower half of the space within it in English script with the description of weight and quality. This trade mark it was stated had acquired distinctiveness in respect of old coins and pieces produced by 574 them on account of long and extensive use, that the people in that part of the country particularly the people in the rural areas have always had a great fancy for the gold pieces and coins of Habib Bank Ltd., on account of their fineness for use in preparing ornaments as also as the safest investment of their savings by purchasing and retaining these coins and pieces, and consequently such gold coins continued to be highly popular among the people in the rural areas as well in the bullion trade, and are distinguished on account of the above noted features and trade mark. It was alleged that M/s. Pannalal Durga Prasad, Kanpur are producing similar coins and pieces of gold and to them they apply a trade mark which is deceptively similar to the above registered trade mark of M/s. Habib Bank Ltd., the only difference between the two was that instead of Habib Bank Ltd., in Gujarati script on one face and English script on the other face, the words 'Habib quality ' are used and the words 'pure gold ' in English script is preceded by the letters P & D. It was averred that this trade mark adopted by M/s. Panna Lal Durga Prasad is bound to deceive not only the buyers who are ignorant of English and Gujarati scripts, but even unwary purchasers from urban areas are likely to be deceived. Though by a registered letter the Trade Mark office had drawn the attention of the firm regarding the use of the mark by them and had requested them to indicate the period for which they had been using it and whether the mark had been registered as a trade mark in their name, they had not chosen to reply even though they received the letter. It was further stated that a goldsmith Shri Pyarelal in Nayaganj market is also falsely applying the registered trade mark of M/s. Habib Bank Ltd., and has in his possession dies and other instruments for being used for falsifying the trade mark. On these allegations the Magistrate was requested to take necessary action under the law against those mentioned in the letter in respect of offenses under Sections 78 and 79 of the Act, by directing the Police to investigate the case. On receipt of this letter on the same day namely 24 10 1962 the Magistrate directed the Police to register a case and investigate. The Sub Inspector of Police thereupon prepared a search Memo in as much as there was no sufficient time to get the warrant of search issued and also because of the possibility of the removal of goods and effected a search of the premises. The Inspector went to the Silver and Gold factory of Panna Lal Durga Prasad and found that Ram Nath Son of Durga Prasad one of the Respondents was present there. He made an inspection of the factory in his presence and seized the dies for the manufacture of coins and gold 575 bars found near the place of goldsmith Munna son of Lakhpat. The Inspector further in the presence of the witnesses caused a gold coin of one tola and another of half tola to be manufactured by way of specimen out of the gold bar found at the place. These coins were duly seized and preserved, after obtaining the seal of Ram Nath. It is unnecessary to give, all the, details of the recoveries because that is not relevant for the purposes of this case. A police report was accordingly made to the Magistrate who adopted the procedure under Sec. 251 A by examining each of the Respondents after which he framed charges against them. Thereafter he examined Wadia, P.W. 1, a Senior Attorney Clerk of Habib Bank Ltd., Bombay on 1 5 64. On 29 5 64 before other witnesses could be examined the Respondents filed an application stating that from the evidence of Wadia, P.W. 1, Habib Bank had stopped dealing in gold and does not now manufacture gold coins, that it had also destroyed the dies And since 1954 this trade mark of Habib Bank has become ineffective and is thrown open to the public, as such it was prayed that the case be stayed and the complainant directed to seek remedy ill the civil court so that the accused persons may not be unnecessarily harassed. The Magistrate rejected this contention because it appeared from the evidence that the registration of the trade mark of Habib Bank was current upto 1967 and that since the Respondents have been charged under Sections 78 and 79 of ' the Act the contention of the accused that in view of Sec. 46 of the said Act where a trade mark is abandoned for more than years, the Respondents cannot be said to have committed an offence, is not tenable. By a well considered order the Magistrate dismissed the application and directed the production of the entire evidence on the next date, without fail. Against this a revision was filed before the Sessions Judge of Kanpur. The Sessions Judge made a reference to the High Court recommending the quashing of the charge on the ground that "The principle of abandonment is given legal recognition in Sec. 46 Trade & Merchandise Marks Act which provides that a registered trade mark may be taken off the register if it was not used for continuous period of five years or longer. " The High Court held that on the statement of Wadia it is clearly established that Habib Bank Ltd., had stopped dealing in gold and coins since 1954 and there could therefore be no question of the Respondents corn mitting any offence under Sections 78 and 79 of the Act. On this reference the High Court by its Judgment dated 6 9 67 thought that Sec. 46 had no application inasmuch as, that Section provided that unless the registration had been rectified the propriety rights of the Bank could not be said to have ended only because the trade mark had not been used for a period of more than 5 years. It observed that there may be cases where the non 576 user of the trade mark may have been occasioned on account of special reasons and such non user was explainable; that clause (iii) of Sec. 47 makes it clear that it is open to the owner to contest the application for rectification of the register, by the plea, that the non user of the trade mark was due to special circumstances in the trade and not due to any intention on his part to abandon or not to use the trade mark in relation to the goods to which the application relates. Accordingly the learned Judge expressed the view that the proceedings are not vitiated on the ground that the trade mark in question has ceased +to be the property of M/s. Habib Bank Ltd. It appears that a contention was urged before the High Court that since Habib Bank Ltd., was declared to be a foreign Bank in the year 1960 by the Reserve Bank of India as it had become a citizen of Pakistan, it was not a citizen under the Constitution of India and therefore had no proprietory rights in this Country. The High Court said that this submission of the Respondent 's Advocate had some force as the question raised was a substantial question of law involving the interpretation of the Articles of the Constitution, that could properly be decided in a civil action rather than by a Magistrate in a Criminal case. For this proposition reliance was placed on a decision of that Court in Karan Singh vs Mohan Lal(1), which following a Full Bench decision of the Calcutta High Court in Ashutosh Das vs Keshav Chandra Ghosh(2) held that a controversy between the parties relating to a complicated question of abandonment of the user and relating to the express or implied consent of the registered holder of the trade mark are questions which should be decided in a civil court rather than by a Criminal Court. It was also held by the High Court that Since the complaint in the particular case had not been made by a Proprietor of the trade mark, the prosecution of the accused on the complaint of the Trade Marks Inspector and a subsequent investigation by the Police were not tenable under Sections 78 and 79 of the Act in view of the provisions of Sec. 28 of that Act. An objection seems to have, been taken before the learned Judge that the High Court was not competent to quash the proceedings pending before the Trial Magistrate in that case because no revision petition had been filed against the order of the Magistrate by which the charge was framed against him but it was only after one of the witnesses had been examined that a Revision had been filed which is not competent. The High Court rejected this contention and held that it had power to exercise revisional powers under Sec. 561 A and accordingly accepted the reference made by the Sessions Judge and quashed the proceedings against the accused for offences under Sections 78 & 79 of the Act. (1) (2) A.T.R. 577 It appears to us that the High Court had misdirected itself in considering that the submissions which found favour with it, were relevant for the purpose of deciding whether the proceedings for prosecution for offences under Sections 78 and 79 of the Act were not valid either because, the Habib Bank Ltd., being a foreign Bank was not a citizen and as such had no rights or that the prosecution cannot be initiated by the Inspector of Trade Marks or that the, question of the abandonment of trade mark amounted to an express or implied consent was a matter for civil court and cannot be made the subject of a criminal prosecution. Sections 78 and 79 are contained in Chapter X of the Act. Section 78 provides that any person who falsifies any trade mark, falsely applies to goods any trade mark; or makes, disposes of, or has in his possession any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying a trade mark, applies any false trade description to goods etc. shall unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both, while Section 79 makes a person liable to similar punishment if he sells goods or exposes them falsely or for having them in his possession for sale or for any purpose of trade or manufacture any goods or things to which any false trade description is applied. Trade mark has been defined in Sec. 2 (1) (v) to mean (i) in relation to Chapter X (other than Section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and (ii) in relation to the other provisions of this Act,a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person and includes a certification trade mark registered as such under the provisions of Chapter VIII. " It is apparent from this definition that for the purposes of Chapter X of the Act which deals with criminal offenses, a trade mark includes a registered as well as unregistered trade mark. An offence under Sections 78 or 79 therefore relate to a trade mark whether it is registered or unregistered. The contention that the 578 registered trade mark of the Habib Bank Ltd., has been abandoned since the said Bank had discontinued its use from 1954 will not absolve the respondents from Criminal liability because even if it was abandoned it can only furnish a ground for a person to make an application under sec. 46 to have the trade mark removed from the registers. It does not however entitle him to use a trade mark whether it is current or has been removed from the register, or has been abandoned or even if it has never been initially regis tered but has acquired the currency of a trade mark. The offenses under Sections 78 and 79 consists in the deception and application of a trade mark which is in use and which signifies a particular type of goods containing that mark. There is, therefore, no validity in the contention that the infringement of the trade mark of Habib Bank Ltd., merely gives rise to a civil action, in respect of which no prosecution will lie. The provisions contained in Chapter IV in which is contained Sec. 28 relate to the effect of registration and have no bearing on the question before us. It was neatly urged that the Trade Marks Inspector had no right to make a complaint under Sections 78 and 79 and therefore the prosecution was invalid. This contention also in our view is misconceived. A perusal of sub section (2) of Sec. 89 would show that no Court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of the 1st Class shall try an offence under this Act; while sub section (1) provides that no Court shall take cognizance of an offence under Sec. or Sec. 83 except on complaint in writing made by the Registrar or any officer authorised by him in writing. Merely because sub section (1) of Sec. 89 refers to manner of taking cognizance in respect of offence under the Section specified therein, it does not preclude cognizance of other offenses specified in Chapter X from being taken under the procedure prescribed by the Criminal Procedure Code. It is apparent that offenses under Sections 78 and 79 are punishable with imprisonment of two years or with three years if they fall under the respective provisos to the said Sections. In cases where an offence is punishable with imprisonment of one year and upwards but less than 3 years, under Chapter XXIII of Schedule 11 it is non cognizable and is a summons case, triable as already stated under Sec. 89(2) by the Sessions Judge, Presidency Magistrate or a Magistrate of the 1st Class. In such cases under Sec. 155 of the Criminal Procedure Code when an information is given to an officer incharge of the Police Station of the commission of a non cognizable offence, he has to enter the substance of the information in a book to be kept for the purpose and refer 'the informant to the Magistrate but he cannot under sub section (2) investigate such a case without the order of a Magistrate. On receiving such an order any Police officer may exercise the same powers in respect of the investigation (except the power to arrest 579 without warrant) as an Officer in charge of police station may exercise in a cognizable case. On receipt of a report from the, Police in compliance with such orders, the Magistrate may it the report discloses the commission of an offence try the accused by the procedure prescribed under Sec. 251 A of the Criminal Procedure Code. This being the legal position in this case the Magistrate in our view has followed the correct procedure. The information in respect of the commission of an offence under Sections 78 and 79 of the Act was brought to the notice of the Magistrate by a letter from the Trade Marks Inspector, The Magistrate directed the police to register a case and investigate it. The Police accordingly complied with it and made a report thereon. On receipt of the report the Magistrate satisfied himself that the respondents had received the, documents referred to in Sec. 173. After a consideration of those documents he examined the accused and after giving an opportunity to both the prosecution and the accused framed a charge on being satisfied that there was a prima facie case. The procedure followed therefore is unexceptionable. The question whether the Habib Bank Ltd., being a foreign Bank is not a citizen and whether it has any right in the trade mark is therefore irrelevant and does not affect the validity of the proceedings or of the charges framed against the accused. We accordingly allow the appeal, set aside the Judgment of the High Court and direct the Magistrate to proceed with the case in accordance with law. V.P.S. Appeal allowed.

The Inspector of trade marks wrote a letter to the Magistrate and requested him to take necessary action under law against the respondents on the allegations that the respondents were producing coins and pieces of gold and were applying to them a trade mark which was deceptively similar to the registered trade mark of a bank, and which was in force when the respondents produced the coins. The Magistrate directed the police to register a case under the , and investigate it. On receipt of the police report the Magistrate followed the procedure prescribed by section 251A of the Criminal Procedure Code, and framed charges under sections 78 and 79 of the Act on being satisfied that there was a prima facie case. After one of the prosecution witnesses was examined the respondents raised the question that the evidence disclosed that the bank had discontinued the use of the trade mark and a question of abandonment which could be more suitably dealt with by the civil court, had arisen. The High Court on reference by the Sessions Court held that : (1) the prosecution could not be initiated by the Inspector of Trade Marks in view of section 28 of the Act, (2) whether the question of the abandonment of the trade mark amounted to an express or implied consent for use by the respondent was a matter for the civil court and not for a criminal prosecution and (3) the prosecution for offenses under sections 78 and 79 was not valid because the Bank was declared to be a foreign bank by the Reserve Bank of India in 1960 and hence had no rights as a citizen of India. Allowing the appeal to this Court, HELD : (1) Merely because section 89(1) of the refers to the manner of taking cognizance in respect of certain offenses specified therein, it does not preclude the cognizance of other offenses specified in Chapter X of the from being taken under the procedure prescribed by the Criminal Procedure Code. The offenses with which the respondents were charged are punishable with imprisonment of two years and hence, being non cognizable, the procedure followed, in the present case, by the Magistrate, is unexceptionable. Section 28 of the Act which is in Chapter IV relating to the effect of registration has no hearing on the question [578 C H; 579 A D] (2) An offence under sections 78 and 79 relates to a trade mark whether it is registered or unregistered. The application of a trade mark signifies a particular type of goods and involves deception. Therefore, the fact that the Bank discontinued the use of the trade mark would not absolve the respondents, from criminal liability. Even if the trade mark was abandoned by the Bank it could only furnish a ground for a person to make 573 an application under section 46 of the to have the trade mark removed from the register of trade marks, but it does not entitle anyone to use the trade mark. [577 A; 578 A C] (3) The question whether the Bank, being a foreign bank, is not a citizen and had no Tight in the trade mark is, therefore, irrelevant and does not affect the validity of the proceedings against the accused. [577 A B]

ivil Appeal No. 2820 of 1984. From the Order dated 25.4.84/4.5.84 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. F.D. (SB)(T) A. 999/80 C in Order No. 223/84. Harish N. Salve, Mrs. P.S. Shroff, J.M. Patel and S.A. Shroff for the appellant. B. Dutta, Additional Solicitor General, Ms. Indu Malho tra and C.V.S. Rao for the respondent. The Judgment of the Court was delivered by 385 SABYASACHI MUKHARJI, J. This is an appeal under Section 35L of the (hereinafter referred to as 'the Act ') from the order passed and judgment delivered on 25th April, 1984/4th May, 1984 by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'the Tribunal '). The question involved is whether the crude PVC film is dutiable. The appellant is, inter alia, a manufacturer of crude PVC films for the purpose of use in final products such as leather cloth and laminate jute mattings and PVC tapes both insula tion and adhesive. The said crude PVC films are manufactured by the appellant in a continuous process in the factory premises of the appellant which are licensed premises under the Act. The appellant filed classification list No. XIV/75 dated 20th November, 1975 in respect of crude PVC films used for lamination with jute and for tapes claiming that the said PVC films were non excisable on the ground that the same were nonmarketable intermediate products used exclu sively for captive consumption. The said classification was approved by the Assistant Collector, Central Excise on 9th December, 1977. There was an order passed by the Appellate Collector on 14th June, 1974 holding that crude PVC films were not mar ketable and were not liable to excise duty. It is necessary to refer to the Tariff Entry involved in this case. Tariff Item 15 A(2) of the Central Excise Tariff reads as follows: "Articles made of plastics, all sorts includ ing tubes, rods, sheets, foils, sticks, other rectangular or profile shapes. whether lami nated or not, and whether rigid or flexible, including levy flat tubings and polyvinyl chloride sheets, not otherwise specified. " The same crude PVC films which have been manufactured by the appellant and used in the manufacture of some other end product were subject matter of adjudication by the concerned authorities in the period 1.3.1970 to 29.5.1971. The Appel late Collector of Central Excise in an order dated 14th January, 1974 held that the said PVC films manufactured by the appellant are not marketable intermediate products and hence not liable to duty. The Appellate Collector, Central Excise in his order noted the contentions of the appellant that the appellant had produced sufficient evidence to prove that the crude PVC sheets which were the subject matter of the Show Cause Notice in that case and which are also the subject matter of the present show cause notice were not known in the market as PVC sheets nor were 386 these marketable as PVC sheets. After reference to the rival contentions, the said Appellate Collector in his order held, inter alia, as follows: "PVC films/sheets for the clearance of which demand letters are issued are not marketable as the same are neither embossed nor printed nor any finishing Work is done when compared to PVC films/sheets which are marketed by them. It was further stated that the tensile strength of PVC sheets which is marketed by the appellants is as per the international standards laid down by A.S.T.M./I.S.I. and is much higher than the crude PVC sheets manufac tured by them as an intermediate product for further manufacture of leather cloth. As such, it was contended that the product manufactured by the appellants is not liable to central excise duty. Shri Patel further stated that it was not necessary to prove from technical angle that the curde PVC sheets manufactured by the appellants for manufacturing leather cloth are different from PVC sheets which are manufactured by them and sold in the market as such. Crude PVC sheets used in the appellants ' factory for further manufacture of leather cloth can be distinguished from PVC sheets which are marketed by them as such by naked eye. Moreover, all the processes which are required in case of PVC sheets which are marketed by the appellants so as to make these sheets marketable are not carried out in the case of crude PVC sheets which are used by the appellants in their factory for the manufac ture of leather cloth . . " The Appellate Collector further held in the said order that from the technical point of view, crude PVC sheets are different from marketable PVC sheets inasmuch as the tensile strength of crude PVC sheets is much lower than that of marketable PVC sheets. He further held that: "This is so because marketable PVC sheets are passed through the calender at very high temperature and at a slow speed to that gela tion/curing fusion takes place while in the case of crude PVC sheets, the same are passed through the calender at very fast speed and lower temperature with the result that gela tion fusion in the course of heating and ageing is not formed resulting in lower ten sile strength. When these crude PVC sheets are coated with textile 387 fabrics, the two layers are passed through the rollers at slow speed and at high temperature and it is only at this stage that the GEL is properly formed and resin particles become swollen by diffusion of plasticizer into them that they touch each other. As heating progresses, the swollen particles begin to weld together, resulting in the required degree of strength. " Thereafter, the Classification List was filed in respect of crude PVC films manufactured for use in adhesive tapes on 9th December, 1975 and the said list was approved by the Assistant Collector of Central Excise after making an in quiry in that behalf. On 15th February, 1977, however, a Show Cause Notice was issued by the Assistant Collector, calling upon the appellant to show cause as to why crude PVC films should not be classified under teriff Item 15A(2) and appropriate duty not recovered under Rule 10 of the Central Excise Rules, as these then stood, read with Rule 173 J of the Central Excise Rules. There was a corrigendum issued on February 23, 1977 to the said Show Cause Notice dated 15th February, 1977 substituting the words 'Rule 10 ' by the words 'Rule 10A '. A reply was given by the appellant to the said Show Cause Notice. In the said reply, the appellant stated as follows: "We have repeatedly pointed out that the issue of "Crude Film" has been decided by the Appel late Collector and also by the Assistant Collector while approving classification. However, the Superintendent persisted in pressing us for giving information about production figures of 'Crude Film ' possibly with a view to raise demand. We had requested the Superintendent to let us know the provi sion under which he required us to give the information in regard to a product which was non excisable. He was not able to clarify this and tried to invoke wrong sections and rules according to us. The present action of re classification, in order to make the product excisable some how or other, seems to us to be a continuation of the matter which the Super intendent was not able to enforce on us. There is no change in the market terminology of "PVC Film". Our product is not known in the market as "PVC Film". Even technically also a further process is required to be carried out on our product before it is "PVC Film" as is known to the market. The various decisions of Supreme Court on this point are well known to the Department. It is also known 388 that the Appellate Collector 's decision is binding on you. The principles of natural justice cannot be served by serving a show cause notice on us in order to change the Appellate Collector 's decision in some manner or other. We have an uneasy feeling that an attempt is being made to some how bring the product under excise duty. " There was an order passed on 16th February, 1978 by the Assistant Collector confirming the Show Cause Notice. On 10th October, 1979 an appeal was preferred by the appellant against the order of the Assistant Collector dated 16th February, 1978 which was rejected by the Appellate Collector of Central Excise. On 6th February, 1980 a revision applica tion was preferred, by the appellant to the Joint Secretary, Government of India. That was transferred to the Tribunal and by the impugned order, the Tribunal has rejected the appeal under challenge. The Tribunal in the order has set out the contentions and observed that the question for determination was whether crude PVC film fell for classification under Item 15A(2) of the Central Excise Tariff or not. A submission was made that the Appellate Collector had held that the crude PVC sheets were not marketable and had not acquired the character and status of PVC films as known to the market. It was contended on behalf of the appellant that only marketable PVC film would fall within the said item. On the other hand, the Department 's contention was that there was nothing to show that the film/sheet was crude and the test of marketability was not relevant. According to the Tribunal, the crude PVC films/sheets would fall under the Tariff Item. The Tribunal was of the view that the tariff entry did not spell out whether it covered only finished film/sheet or whether it covered also crude film/sheet. The Tribunal came to the conclusion that the tariff item covered all types of films/sheets. The Tribunal also came to the conclusion that the concept of marketability was not relevant and all sorts of crude films would be covered by the entry. The Tribunal was of the view that the Appellate Collec tor 's observations were made entirely in different context. In that view of the matter, the Appellate Collector 's order was confirmed subject to the modification that duty in respect of clearances prior to the issue of the Show Cause Notice was restricted to the period permissible in terms of Rule 10 read with Rule 173 J, that is to say, for 12 months. In other words, the Tribunal 's view was that if the descrip tion of the 389 goods in question fell into the entry, it was dutiable in the intermediate list and as such the goods had become goods as known to the market and the question of marketability or being capable of being sold in the market was not relevant. In support of this appeal, on behalf of the appellant, it was contended by Shri Harish Salve that it was only the 'goods as specified in the Schedule ' to the Central Excise that could be subject to the duty. It appears to us that under the Central Excise Act, as it stood at the relevant time, in order to be goods as specified in the entry the first condition was that as a result of manufacture goods must come into existence. For articles to be goods these must be known in the market as such or these must be capable of being sold in the market a goods. Actual sale in the market is not necessary, user in the captive consumption is not determinative but the articles must be capable of being sold in the market or known in the market a goods. That was necessary. This has been clearly spelt out by this Court in Union of India vs Delhi Cloth & General Mills, [1963] Supp. 1 SCR 586. There this Court held that excise duty being leviable on the manufacture of goods and not on their sale, the manufacturer could not be taxed unless manufacturing process resulted in production 'of goods as known in the market ' (empahsis supplied). In that case, the respondents, who were manufacturers of vegetable products known as Vanas pati, were assessed to excise duty under Item 23 of the First Schedule to the , on what the taxing authorities called the manufacture of 'r efined oil ' from raw oil which according to them fell within the description of "vegetable non essential oils, all sorts, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power". The common case made by the respondents in their petition under Article 226 of the Constitution challenging the imposition was that for the purpose of manufacturing Vanaspati they purchased groundnut and til oil from the market and subjected them to different processes before applying hydrogenation to produce Vanaspati and that nothing that they produced at any stage was covered by that item. Affidavits by experts were filed by both the parties and the High Court found in favour of the respondents and allowed the petitions. The Union of India appealed. It was urged on its behalf before this Court that before finally producing Vanaspati the respondents produced at an intermediate stage what was known as 'refined oil ' in the market and although they might not sell it and although Vanaspati, when produced, was liable to excise duty under another item, that could not affect their liability. It was held that excise duty being leviable on the 390 manufacture of goods and not on their sale, the petitioners in that case no doubt be liable if they produced 'refined oil ', as known in the market, at an intermediate stage. But the Court found that it was clear that there could be no 'refined oil ' as known in the market without deodorisation according to the specification of the Indian Standards Institute and the affidavits of the experts. Since, however, the process of deodorisation was admittedly applied in the respondents ' factories only after hydrogenation was com plete, they could not be said to produce 'refined oil ' at any stage. Nor could the respondents be held to manufacture some kind of 'non essential vegetable oil '. K.C. Das Gupta, J., who spoke for the Court, at page 595 of the report, observed as follows: "On a consideration of all these materials we have no doubt about the correctness of the respondents ' case that the raw oil purchased by the respondents for the purpose of manufac ture of Vanaspati does not become at any stage "refined oil" as is known to the consumers and the commercial community." After considering the definition of the word 'manufac ture ' and several authorities and Words and Phrases, Perma nent Edition, Vol. 18, from a judgment of the New York Court and also other relevant authorities, this Court held that the definitions made it clear that to become "goods" an article must be something which can ordinarily come to the market to be bought and sold. (Emphasis supplied). In that view of the matter this Court agreed with the High Court and dismissed the appeal. Therefore, the first principle that emerges is that excise was a duty on goods as specified in the Schedule. In order to be goods an article must be some thing which can ordinarily come to the market and is brought for sale and must be known to the market as such. Therefore, the marketability in the sense that the goods are known in the market or are capable of being sold and purchased in the market is essential. This principle was again reiterated by this Court in South Bihar Sugar Mills Ltd., etc. vs Union of India & Ors. , ; , where this Court held that the gas generated by the appellant companies in that case was kiln gas and not carbon dioxide as known to the market, i.e., to those who deal in it or who use it. Therefore, the kiln gas in question is neither carbon dioxide nor com pressed carbon dioxide known as such to the commercial community and could not attract duty under Item 14 H of the First Schedule. It was held by this Court that the duty being on the manufacture and not on the sale, the mere fact that kiln gas generated by those concerns was not actually 391 sold did not make any difference if what they generated and used in their manufacturing process was carbon dioxide. Justice Shelat speaking for the Court at page 31 of the report observed: "The Act charges duty on manufacture of goods. The word "manufacture" implies a change but every change in the raw material is not manu facture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use. The duty is levied on goods. As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning is that to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market. (emphasis supplied). That it would be such an article which would attract the Act was brought out in Union of India vs Delhi Cloth & General Mills Ltd., [1963] Suppl 1 SCR 586. " In that view of the matter, the Court came to the conclusion that the gas generated by these concerns was kiln gas and not carbon dioxide as known to the trade, i.e., to those who deal in it or who use it. It must be capable of being sold in the market and known in the market as such. Then only it would be dutiable. This view was reiterated again in Union Carbide India Ltd. vs Union of India, where Pathak, J. as the learned Chief Justice then was, speaking for the Court observed that in order to attract excise duty the article manufactured must be capable of sale to a consumer. The expression "goods manufactured or produced" must refer to goods which are capable of being sold to the consumer. This Court observed as follows: "It does not seem to us that in order to attract excise duty the article manufactured must be capable of sale to a consumer. Entry 84 of List I of Schedule VII to the Constitu tion specifically speaks of "duties of excise on tobacco and other goods manufactured or produced in India . ", and it is now well accepted that excise duty is an indirect tax, in which the burden of the imposition is passed on to the ultimate consumer. In that context, the expression "goods manufactured or produced" must refer to articles which are capable of being sold to a consumer. In Union of India vs 392 Delhi Cloth & General Mills, this Court con sidered the meaning of the expression "goods" for the purposes of the and observed that "to become 'goods ' an article must be something which can ordinarily come to the market to be bought and sold", a definition which was reiterated by this Court in South Bihar Sugar Mills Ltd. vs Union of India. " It is necessary in this connection to reiterate the basic fundamental principles of excise. The Judicial Commit tee of the Privy Council in Governor General in Council vs Province of Madras, , this Court observed at page 1287 of the report that excise duty was primarily a duty on the production or manufacture of goods produced or manufactured within the country. This Court again in Re The Bill to Amend section 20 of the , And Sec tion 3 of the ; , at page 822 of the report referring to the aforesaid observations of the Judicial Committee reiterated that taxable event in the case of duties of excise is the manu facture of goods and the duty is not directly on the goods but on the manufacture thereof. Therefore, the essential ingredient is that there should be manufacture of goods. The goods being articles which are known to those who are deal ing in the market having their identity as such. Section 3 of the Act enjoins that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or 'man ufactured ' in India. "Excisable goods" under section 2(d) of the Act means goods specified in the Schedule to the Central Tariff Act, 1985 as being subject to a duty of excise and includes salt. Therefore, it is necessary, in a case like this, to find out whether there are goods, that is to say, articles as known in the market as separate distinct identi fiable commodities and whether the tariff duty levied would be as specified in the Schedule. Simply because a certain article falls within the Schedule it would not be dutiable under excise law if the said article is not "goods" known to the market. Marketability, therefore, is an essential ingre dient in order to be dutiable under the Schedule to Central Tariff Act, 1985. It appears from the facts as aforesaid before that the crude PVC films as produced by the appellant in this case were not known in the market and could not be sold in the market and was not capable of being marketable. The learned Solicitor General submitted before us that the Tri 393 bunal was right in considering that as the article fell within the Entry the marketability was irrelevant and the Tribunal was right in not considering whether the articles in question, namely, crude PVC films used in this case, were marketable or capable of being sold and used in the market. Mr Harish N. Salve on the other hand submitted that as it was found that the goods were not marketable by the Appellate Collector in the order of 1974 and no evidence was adduced before the Tribunal to the contrary and the Tribunal refused to consider the question of marketability no useful purpose would be served in remanding the matter to the Tribunal. The appeal should be allowed and no duty should be charged. As mentioned before, the Appellate Collector has on 14.1. 1974 held that the crude PVC sheets/films which formed the subject matter of the appeal are manufactured by the appellant for the production of leather cloth in the factory are not marketable as PVC sheets and had allowed the appeal because he found that: " . because PVC sheets of the gauges manufactured by the appellants are invariably either embossed or printed or both. The nature of embossing may be with an engraving roll or with a mirror finished roller or a mat finish. The manufacture or PVC sheets marketable as such involves the following processing se quences, namely: Polyvinyl chloride resin is formulated with plasticizer, colorants, heat stabilizers, etc. and the formulation is thoroughly mixed. When homogeneous, this mix is fed through a two roll mill to give heavy sheet stock, which in turn is fed to the calender, where it is reduced to the desired width, thickness etc. The temperature at which PVC sheets which are marketed as such are passed through the calender is about 178o C (330 350x) and the speed of the roller is adjusted accordingly. The speed of the roller and the temperature at which the sheets are passed through the calender are important factors in order to achieve the minimum stand ard of tensile strength of the sheets. Gela tion, i.e., the change of state from the liquid to the solid condition that occurs during the heating and/or ageing, when the plasticizer has been absorbed by the resin to an extent resulting in a dry but weak and crumbly mass, and thereafter within normal proportions of resin and plasticizer, this state is 394 attained when the resin particles have become so swollen by diffusion of plasticizer into them that they touch each other, is an impor tant process in the case of PVC sheets which are marketed as such. As heating progresses the swollen particles begin to weld together, resulting in some degree of strength. After the GEL is formed in such PVC sheets and resins get fused with plastisizer, they are further subjected to the processing of finish ing, embossing/printing. On the other hand, crude PVC sheets manufactured by the appel lants for production of leather cloth in their factory are passed through the rollers at a temperature of 130o 1400 (280 F) and the speed of the roller is, therefore, faster. Due to low temperature and faster speed of the rollers fusion is not completed in such crude plasticizers thus resulting in the tensile strength of such crude PVC sheets which is much less than the tensile strength of the PVC sheets which are marketable as such. The tensile strength of PVC sheets which are marketed as such and the crude PVC sheets which are used by the appellants in their factory for the manufacture of leather cloth are as under: (1) Marketable PVC sheets Thickness Tensile strength Per cm. in Kgs. Longitudinal Transverse 0.08 mm 239 185 O. 10 mm 230 201 O. 15 mm 268 2 13 0.20 mm 230 200 (2) Crude PVC sheets Thickness Tensile strength Per cm. sq. kgs. Longitudinal Transverse O. 11 mm 127 98 0.22 mm 144 107 The thickness of crude PVC sheets of O. 11 mm ultimately comes to 10 mm when it is coated with textile fabrics and rolled. Similarly, the thickness of crude PVC sheets of 0.22mm ultimately comes to when it is coated with fabrics and rolled. 395 The idea behind producing crude PVC sheets at low temperature and at high speed of the rollers is that when such crude PVC sheets are coated with textile fabrics and passed through a coating machine, high temperature is required to be maintained and the speed at which the rollers move has also got to be slow so that these partially fused crude PVC sheets are eventually fully fused at the time of coating these sheets with textile substrates. No finishing, embossing or printing is done in case of such crude PVC sheets. I, therefore, hold that the crude PVC sheets manufactured by the appellants are used by them in the manu facture of leather cloth in their factory are not marketable as PVC sheets and as such the same are not liable to duty under Item 15A(2) of the said Schedule. " In view of the Appellate Collector 's order dated 14.1.1974 it was the duty of the revenue to adduce evidence or proof that the articles in question were goods. No evi dence or proof was produced. The Tribunal went wrong in not applying the proper test. The test of marketability or capable of being marketed was not applied by the Tribunal. In that view of the matter that there being no contrary evidence found by the Tribunal in this case subsequent to the finding by the Appellate Tribunal, we are of the opinion that the appeal should be allowed and no excise duty should be charged under section 15A(2) of the Central Excise Tariff on the Crude PVC sheets. In the facts and circumstances of the case, there will be no order as to costs. T.N.A. Appeal allowed.

The appellant is a manufacturer of Crude PVC films for the purpose of use in final products such as leather cloth and laminate jute mattings and PVC tapes both insulation and adhesive. The films manufactured by the appellant were subject matter of adjudication by the Excise authorities during the period commencing from 1st March, 1970 to 29th May, 1971. The Appellate Collector of Central Excise by an order dated 14.1.1974 held that the appellant had produced sufficient evidence to prove that the said Crude PVC films were not marketable and were therefore not liable to excise duty. On 20.11.1975 the appellant filed a classification list in respect of Crude PVC films used for lamination with jute and for tapes claiming that the said PVC films were non excisable on the ground that the same were non marketa ble intermediate products used exclusively for captive consumption. On 9.12.1975 the classification list was ap proved by the Assistant Collector, Central Excise. On 15.2.1977, however, the Assistant Collector issued a show 383 cause notice calling upon the appellant to show cause as to why the aforesaid films should not be re classified as excisable under Item No. 15A(2) of the Central Excise Tariff Schedule and appropriate duty not recovered under Rule 10 of the Central Excise Rules, as these then stood, read with Rule 173 J. By a corrigendum, dated 23.2.1977, to the said show cause notice Rule 10 A was substituted in place of Rule 10. The appellant contested the notice but the Assistant Collector vide his order dated 16th February, 1978 confirmed the said show cause notice by holding that the said PVC films were classifiable under Item No. 15A(2) and directed the appellant to pay duty at the appropriate rate on past clearances under Rule 10 A read with Rule 173 J. The appeal filed against the aforesaid order was reject ed by the Appellate Collector of Central Excise on 10th October, 1979. A revision was preferred before Customs, Excise and Gold (Control) Appellate Tribunal. The Tribunal confirmed the order of the Appellate Collector and held that the goods in question fell under Tariff Item No. 15A(2) and were dutiable in the intermediate list and the question of marketability or being capable of being sold in the market was not relevant, but modified the order to the extent that duty in respect of clearances prior to the issue of show cause notice was restricted to the period permissible in terms of Rule 10 read with Rule 173 J viz. 12 months. In the statutory appeal to this Court under Section 35 L, of the the question for consideration was whether the Crude PVC film was dutiable under Item No. 15A(2). Allowing the appeal, HELD: 1. In view of the Appellate Collector 's order holding that the Crude PVC films were not marketable goods and there being no contrary evidence found by the Tribunal subsequent to the finding by the Appellate Collector no excise duty should be charged under Item No. 15A(2) of the Central Excise Tariff on the Crude PVC Sheets. The Tribunal went wrong in not applying the proper test. The test of marketability or capable of being marketed was not applied by the Tribunal. [395D E] 2. Under the Central Excise Act, as it stood at the relevant time, in order to be goods as specified in the entry the first condition was that as a result of manufac ture goods must come into existence. For articles to be goods these must be known in the market as such or these 384 must be capable of being sold in the market as goods. Actual sale in the market is not necessary, user in the captive consumption is not determinative but articles must be capa ble of being sold in the market or known in the market as goods. Taxable event in the case of duties of excise is the manufacture of goods and the duty is not directly on the goods but on the manufacture thereof. The manufacturer could not be taxed unless manufacturing process resulted in pro duction 'of goods as known in the market '. The expression "goods manufactured or produced" must refer to goods which are capable of being sold to the consumer. [389B C; 391F] Union of India vs Delhi Cloth and General Mills, [1963] Suppl. 1 S.C.R. 586; South Bihar Sugar Mills Ltd. etc. vs Union of India & Ors, ; ; Union Carbide India Ltd. vs Union of India, ; Governor General in Council vs Province of Madras, [1945] 7 F.C.R. 179; In Re. the Bill to Amend section 20 of the and Section 3 of the , ; applied. Simply because a certain article falls within the Schedule it would not be dutiable under excise law if the said article is not 'goods ' known to the market. Marketabil ity, therefore, is an essential ingredient in order to be dutiable under the Schedule to the Central Tariff Act, 1985. [392F G] 3.1. In the instant case, the Crude PVC films as pro duced by the appellant were not known in the market and could not be sold in the market and were therefore not capable of being marketable. [392G H]